The U.S. Army has just published the 2013 edition of its annual Weapon Systems Handbook, which is filled with updated information on dozens of weapon systems, the military contractors who produce them, and the foreign countries that purchase them.

So one learns, for example, that the RQ-11B Raven Small Unmanned Aircraft System is marketed to Denmark, Estonia, Lebanon, and Uganda, while the United States sells artillery ammunition both to Israel and to Lebanon.

An appendix provides an informative breakdown of military industry contractors by weapon system and by the state where the contractor is located.

“The systems listed in this book are not isolated, individual products. Rather, they are part of an integrated Army system of systems designed to equip the Army of the future to successfully face any challenges,” according to the Handbook introduction.

“After 10 years of combat, today’s Army is significantly more capable than the Army of 2001. As we draw down from Iraq and Afghanistan, we must remain flexible, adaptable, and agile enough to respond and meet the needs of the combatant commanders.”

“Our objective is to equip and maintain an Army with the latest most advanced weaponry to win and return home quickly.”

The long-dormant Privacy and Civil Liberties Oversight Board (PCLOB) announced that it will hold its first public meeting next week and it invited members of the public to provide input to help shape the Board’s near-term agenda.

“In anticipation of setting the agenda of issues on which the Board will focus its attention, the Board would welcome the views of nongovernmental organizations and members of the public,” stated a notice in the October 23 Federal Register.

The PCLOB was created in response to a recommendation of the 9/11 Commission that “there should be a board within the executive branch to oversee… the commitment the government makes to defend our civil liberties.”

By statute, the PCLOB is mandated to “(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and (2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”

In response to the announcement of next week’s meeting, we wrote in to propose that the PCLOB should review the government’s problematic use of Section 215 of the USA Patriot Act. “The use of Section 215, the so-called ‘business records’ provision, is the subject of intense and unresolved controversy that warrants the Board’s attention,” we suggested.

Senators Ron Wyden and Mark Udall have stated that “most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.”  If so, the members of the PCLOB can be stunned on behalf of most Americans by virtue of the security clearances and right of access that they possess.

For background on the origins and development of the PCLOB, see Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service, August 27, 2012.

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

Federal Support for Academic Research, October 18, 2012

Unfunded Mandates Reform Act: History, Impact, and Issues, October 22, 2012

Terrorism and Transnational Crime: Foreign Policy Issues for Congress, October 19, 2012

Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power, October 19, 2012

U.S. Sanctions on Burma, October 19, 2012

Burma’s Political Prisoners and U.S. Sanctions, October 19, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, October 18, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, October 18, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, October 19, 2012

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, October 18, 2012

This morning former CIA officer John Kiriakou pleaded guilty to one count of disclosure of information identifying a covert agent, a violation of the Intelligence Identities Protection Act.

“When KIRIAKOU disclosed the identity of Officer A to Journalist A, KIRIAKOU acted willfully in that defendant knew the disclosure was illegal,” according to a Statement of Facts approved and signed by Mr. Kiriakou today.

Under the terms of a plea agreement, the parties agreed that a prison term of 30 months would be “the appropriate sentence in this case.”  Other charges against him, including several counts under the Espionage Act, were dismissed.

By foregoing a trial, Mr. Kiriakou loses an opportunity to try and persuade a jury that his motives were benign, and that the harm to national security resulting from his disclosure was negligible and insignificant.  But he gains an early resolution of the case, which could otherwise drag on for months and years, as well as a sentence that would likely be much shorter than if he were to be found guilty at trial.

(FBI news release).

In the world of security clearances for access to classified information, the term “reciprocity” is used to indicate that one executive branch agency should ordinarily recognize and accept a security clearance that has been granted by another executive branch agency.

This is not just a nice, cost-efficient thing to do, it is actually a requirement of law.  Under the 2004 intelligence reform law, “all security clearance background investigations and determinations… shall be accepted by all agencies.”

This requirement for mutual recognition and acceptance applies equally to the higher order clearances of the intelligence community, where reciprocity is intended to promote employee “mobility” throughout the intelligence system, according to the 2009 Intelligence Community Directive 709.

So possessing a clearance from one agency should simplify the process of access approval at another agency.  But the opposite is not supposed to be true.  If an agency refuses for some reason to recognize the clearance granted by another agency, that refusal is not supposed to incur loss of clearance in the original agency.

Officially, such “negative reciprocity” is not an authorized, legitimate security clearance practice.  And yet there are signs that it is being adopted within the Department of Defense Office of Hearings and Appeals (DOHA), which rules on contested security clearance cases.

A new paper by attorney Sheldon I. Cohen describes a series of DOHA rulings in which a perverse form of negative reciprocity has been used to justify the denial or revocation of a security clearance, to the obvious detriment of due process.

“While the burden of proof has always been placed on the employee by the DOHA Appeal Board to show why he or she should be granted a security clearance, until now there was a modicum of a right to confrontation, and a right to challenge the evidence presented by the government,” Mr. Cohen wrote.

But in a ruling he describes, “anonymous redacted reports and other agency’s decision are enough to deny or revoke a DoD clearance regardless of contrary evidence.”

In a series of recent decisions, the DOHA Appeal Board “has accepted unsigned, unsworn, summary statements from unidentified persons in government agencies [that are] in direct conflict with live testimony at a hearing to deprive or revoke security clearances of government contractor employees.”

To avoid or limit the fallout of negative reciprocity, Mr. Cohen advises DoD employees and contractors to immediately appeal any adverse clearance decision, “at least to get [their] side of the issues on the record.”  Left unchallenged, it appears that adverse decisions by other agencies will be presumed reliable by DOHA and that any later attempt to rebut them “will most probably be rejected.”

See “Has the Defense Office of Hearings and Appeals Become a Star Chamber Court?” by Sheldon I. Cohen, October 19, 2012.

The Department of Defense last week published a three-volume “DoD Sensitive Compartmented Information (SCI) Administrative Security Manual,” DoD Manual 5105.21, October 19, 2012.

Newly updated reports from the Congressional Research Service which Congress has not made publicly available include the following.

Congressional Oversight, October 17, 2012

Contemporary Developments in Presidential Elections, October 18, 2012

U.S. International Trade: Trends and Forecasts, October 19, 2012

President of the United States: Compensation, October 17, 2012

Peru in Brief: Political and Economic Conditions and Relations with the United States, October 18, 2012

Libya: Transition and U.S. Policy, October 18, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, October 17, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, October 18, 2012

 

A massive quantity of historical intelligence satellite imagery from the KH-9 HEXAGON program is being declassified and will be made public in a series of releases that are scheduled over the coming year, intelligence community officials say.

Declassification of intelligence satellite imagery languished for years after President Clinton ordered the release of product from the Corona, Argon and Lanyard missions in the 1995 executive order 12951.  Although the Clinton order also required the periodic review of imagery from other missions, that requirement was effectively ignored by intelligence agencies and neglected by congressional oversight.

But in a May 2010 memorandum Director of National Intelligence Dennis C. Blair ordered the “re-establishment” of the declassification review of intelligence imagery — though it had never been officially disestablished — with a particular focus on imagery from satellite systems that were deemed obsolete.

In January 2011, DNI James R. Clapper formally declared that the KH-9 HEXAGON program was obsolete, and that declassification review of all program imagery should therefore commence.  KH-9 HEXAGON was operational from 1971 to 1984.

“The process to declassify imagery pursuant to EO 12951 began shortly after DNI Blair’s May 26, 2010 memorandum and has been ongoing, in earnest, with the goal of releasing as much imagery as possible to the public, consistent with national security,” said Michael G. Birmingham of the Office of the Director of National Intelligence. “Accordingly, The KH-9/HEXAGON system was declared obsolete in January 2011 and a phased declassification of its imagery has ensued.”

More than two years after the Blair memorandum, however, next to nothing has yet been made public.

“The notable challenges to this effort are the sheer volume of imagery and the logistics involved in cataloging the imagery and moving it to archive,” Mr. Birmingham told Secrecy News.

“For context, and to grasp the scope of the project, the KH-9/HEXAGON system provided coverage over hundreds of millions of square miles of territory during its 19 successful missions spanning 1971-1984.  It is a daunting issue to address declassification of the program specifics associated with an obsolete system such as the KH-9, which involves the declassification of huge volumes of intelligence information gathered on thousands of targets worldwide during a 13 year time period.”

Daunting or not, the large bulk of the KH-9 imagery is expected to be released, with only perhaps 5% or so remaining classified.

“There is a schedule of multiple deliveries with final delivery of imagery scheduled for September 2013,” Mr. Birmingham said.

Within the intelligence community, the National Geospatial-Intelligence Agency is the executive agent for imagery declassification.  NGA public affairs did not respond to questions about its declassification program.  [Correction:  The comments provided by Mr. Birmingham were coordinated with NGA public affairs and represent a joint response to our inquiry from ODNI and NGA.]

We were sad to learn that Professor Anna K. Nelson, a tenacious and effective advocate for improved public access to national security records, passed away last month.

For decades, Prof. Nelson argued for improved declassification practices in almost every venue imaginable, from congressional hearings to the most obscure and transient advisory bodies.  As a professor of history at American University, she insisted that government records were public property and that access to such records was one of the foundations of good citizenship.

Among many other posts, she served as a presidentially-appointed member of the JFK Assassination Records Review Board, which was tasked to oversee the declassification of records concerning the assassination of President Kennedy.  Because of the perseverance of Dr. Nelson and her colleagues, that Board was uniquely productive in overcoming longstanding barriers to declassification, particularly those pertaining to intelligence agency records.

Nevertheless, she was habitually pessimistic about the prospects for meaningful secrecy reform.

“Given past performance, it is highly unrealistic to assume that agencies, particularly Defense and the CIA, will be completely forthcoming or that the Archives will ever question agency decisions,” she wrote in a 2000 letter to Congress. “Agency declassification of selected, heavily redacted records will not serve the public interest. It will only breed more suspicion.”

Prof. Nelson also spoke out in defense of robust investigative reporting on national security matters.  In 2008, for example, she submitted a declaration of behalf of New York Times reporter James Risen, arguing that a grand jury subpoena against him in the pending leak case against former CIA officer Jeffrey Sterling should be quashed.

“If Mr. Risen and other investigative journalists are unable to report effectively on matters of intelligence, the historical record will be incomplete, if not erroneous,” Dr. Nelson wrote.

“Although our own books and articles are stuffed with footnotes, we historians understand that investigative journalists, as observers of the present, must protect their sources. If they do not, the American people will never learn about corruption, incompetence, excessive government secrecy, flaws in homeland security, or disastrous decisions made by policy makers who are advised by their intelligence chiefs,” she wrote. “We must depend upon journalists and journalists must be permitted to depend upon confidential sources.”

The most fundamental purpose of national security policy is not to keep the nation safe from physical attack but to defend the constitutional order.  At least, that is what President Reagan wrote in a Top Secret 1986 directive.

“The primary objective of U.S. foreign and security policy is to protect the integrity of our democratic institutions and promote a peaceful global environment in which they can thrive,” President Reagan wrote in National Security Decision Directive 238 on “Basic National Security Strategy,” which was partially declassified in 2005.

In a list of national security objectives, the directive does note the imperative “to protect the United States… from military, paramilitary, or terrorist attack.”

But that is not the primary objective, according to the Reagan directive.  Defense of the Constitution evidently takes precedence.

The first purpose of national security policy is “to preserve the political identity, framework and institutions of the United States as embodied in the Declaration of Independence and the Constitution,” President Reagan wrote.

This is a remarkable statement, for several reasons.  First, it recognizes that the political identity and institutions of the United States are not simply a given, but that they are vulnerable to many types of threats and must be actively defended and sustained.  This task is not normally assigned the urgency or the priority given to “national security.”

Second, the directive distinguishes between constitutional governance and physical security. Not every measure intended to promote security is constitutional.  And not every act in defense of democratic self-governance is likely to promote public safety.  (The American Revolution was not calculated to increase “homeland security.” Quite the opposite.)  Sometimes a choice between the two is required.  President Reagan indicated what he thought the choice should be.

And third, the directive is remarkable because its rhetoric was so imperfectly realized by the Reagan Administration (and egregiously defied in the Iran-Contra Affair) and has been largely abandoned by its successors.

“Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government,” wrote President George W. Bush in his 2002 National Security Strategy, skipping over President Reagan’s “primary” objective.

Likewise, “As President, I have often said that I have no greater responsibility than protecting the American people,” President Obama wrote in his National Strategy for Counterterrorism.

The Reagan directive invites reflection on what U.S. national security policy would look like if it were truly structured above all “to protect the integrity of our democratic institutions.”

In a section of the directive that was only classified Confidential, President Reagan contrasted the U.S. with the Soviet Union, which was described as its polar opposite.

“Our way of life, founded upon the dignity and worth of the individual, depends on a stable and pluralistic world order within which freedom and democratic institutions can thrive.  Yet, the greatest threat to the Soviet system, in which the State controls the destiny of the individual, is the concept of freedom itself.”

“The survival of the Soviet system depends to a significant extent upon the persistent and exaggerated representation of foreign threats, through which it seeks to justify both the subjugation of its own people and the expansion of Soviet military capabilities well beyond those required for self-defense,” President Reagan wrote.

Numerous Presidential directives from the Reagan Administration have been declassified in recent years and have released by the Reagan Library, though others still remain partially or completely classified. Many of the declassified directives provide a fascinating account that enlarges and enriches the public record of events of the time.

Only last year, for example, a 1985 directive (NSDD-172) on “Presenting the Strategic Defense Initiative” was finally declassified.

This year, NSDD 159 on “Covert Action Policy Approval and Coordination Procedures” (1985) was declassified.

NSDD 207 on “The National Program for Combatting Terrorism” (1986) was declassified in 2008.  Among other things, that directive ordered the Attorney General to “Review the Freedom of Information Act (FOIA) and determine whether terrorist movements or organizations are abusing its provisions.”

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Job Growth During the Recovery, updated October 16, 2012

The President’s Emergency Plan for AIDS Relief (PEPFAR): Funding Issues After a Decade of Implementation, FY2004-FY2013, October 10, 2012

Statutes of Limitation in Federal Criminal Cases: An Overview, updated October 1, 2012

Venezuela: Issues for Congress, updated October 16, 2012

Georgia’s October 2012 Legislative Election: Outcome and Implications, October 15, 2012

Iran Sanctions, updated October 15, 2012

Updated below

A court ruled this month that former CIA officer John Kiriakou, who is charged with unauthorized disclosures of classified information to the media, will not be permitted to argue at trial that he intended no harm to the United States, or that his entire career testifies to a deep commitment to national security.

Instead, the central question at trial will be whether Kiriakou “had reason to believe” that the information he allegedly released would cause injury to the United States.

The court ruling, which favors the prosecution’s conception of the case, was issued during a sealed hearing on October 1.  The hearing transcript has not been released, but the ruling was disclosed in two footnotes in an October 3 defense pleading that was unsealed last week. [See Update below]

The defense said it would have demonstrated at trial “that Mr. Kiriakou had no intent to harm the United States, and that he had no motive to do so had the Court not ruled such arguments inadmissible” (footnote 7).

Similarly, the defense indicated that “this Court’s October 1, 2012 ruling precludes arguments regarding Mr. Kiriakou’s intent to harm the United States or a defense resting on Mr. Kiriakou’s lack of bad faith” (footnote 4).

The defense said it would continue to “note where information would be relevant to such arguments in order to preserve its ability to appeal the issue should that become necessary.”

Meanwhile, two reporters who were subpoenaed by the Kiriakou defense filed motions to quash the subpoenas.

Attorneys for Matthew Cole, designated “Journalist A” in the Kiriakou indictment, said that the information sought by the Kiriakou defense was protected by a reporter’s First Amendment privilege and that there was no basis to overrule the privilege.

Not only that, but Cole attorneys George Doumar and Mark Zaid added that Mr. Cole would assert a Fifth Amendment right to refuse to testify to avoid self-incrimination.  They said that the government’s past move to prosecute unauthorized receipt and transmission of classified information in the AIPAC case (US v. Rosen) raises the possibility that Cole’s testimony “could subject him to a subsequent federal criminal proceeding. Therefore, he will invoke his Fifth Amendment right to remain silent.”

Washington Post researcher Julie Tate also moved to quash a subpoena for her testimony.  She was identified as the “Researcher 1” sought by the defense in an article by Josh Gerstein of Politico last week.

Ms. Tate possesses exceptional news gathering skills.  But she has nothing to do with the charges against Mr. Kiriakou, her attorneys said in their October 11 motion to quash.

“The testimony defendant seeks from Ms. Tate has no conceivable relevance to this case. Defendant has been charged with unlawfully disclosing classified information to Journalist A and Journalist B–not to Ms. Tate. Ms. Tate is not mentioned in the Indictment, and there is no evidence in the record that Ms. Tate has ever met or communicated with Mr. Kiriakou….  The law places the burden on the defendant to establish that he has a need for Ms. Tate’s testimony that is so compelling that it outweighs the First Amendment interests at stake. That burden has not been met.”

Scott Shane of the New York Times, who is “Journalist B” in the Kiriakou indictment, is also believed to have been subpoenaed.  But that subpoena is said to have been withdrawn for reasons that are unclear.  In any case, Mr. Shane and the New York Times did not file a motion to quash.

The pending motions to quash the subpoenas will be argued before Judge Leonie M. Brinkema at an October 18 hearing.

Update: On October 16, the Court issued a Memorandum Opinion explaining its ruling on the intent requirements of the Espionage Act in this case. The October 18 hearing on the pending motions to quash was postponed by the Court.

A day-long conference on national security secrecy will be held tomorrow, October 16, at Fordham Law School in New York City.

The conference brings together a promising mix of former government officials, journalists, litigators, academics and others, including myself.

For more information on the conference, which is open to the public, see here.