In its efforts to improve responsiveness to the needs of its customers, the National Reconnaissance Office this year planned to “provide intelligence data to warfighters in the field using mobile devices.”  Evidently this capability had not been widely available up to now.

That’s one of the slivers of information to be found in the NRO budget justification for FY 2012 that was released this week — in heavily redacted form — in response to a Freedom of Information Act request.

The NRO is the U.S. intelligence agency that builds, launches and operates intelligence satellites.

“The NRO acquires and operates satellites that provide constant global access to critical information otherwise unavailable to the President, his cabinet, other national leaders and numerous customers in the Defense and Intelligence communities,” explains the FY2012 NRO Congressional Budget Justification Book, which NRO submitted to Congress in February 2011.  “These satellites provide services in three broad categories:  GEOINT [geospatial intelligence], SIGINT [signals intelligence], and Communications.”

“Over the past 50 years, data collected by NRO systems has provided advance warning of military aggression, supported combat operations, and assisted arms control treaty verification.  More recently, data from NRO systems has been used to verify environmental treaties, support humanitarian relief efforts, identify WMD programs, and locate terrorists.”

Setting aside the salesmanship and the rhetoric of “striving for excellence” that is the idiom of budget requests, and allowing for the fact that perhaps 90% of the 450 page budget document remains classified, it is still possible to glean at least fragmentary insight into the current state of the NRO from the newly released budget document.  For example:

•   The NRO workforce is aging.  “The number of experienced officers eligible or approaching eligibility for retirement is growing.  Of the current workforce, 53 percent are eligible or will become eligible to retire in the next 10 years.” (p. 10)
•   As in other agencies, unauthorized disclosures and the “insider threat” are a renewed focus of attention.  NRO security personnel “conduct daily CI [counterintelligence] activities to include auditing, monitoring, and analyses [against] the insider threat” (p. 268).  In FY 2012, NRO proposed to “expand automation of IT to provide analysis-enabling auditing and monitoring of user activity on classified computer systems to detect anomalous behavior” (p. 3).
•   NRO mission ground stations conduct “24 hour a day operations to continually apprise DoD, IC and National users of NRO systems’ status” while “maintaining awareness of and protection of NRO systems from environmental and manmade threats.”  The NRO ground stations provide “24 hour a day overhead SIGINT operations management capability on behalf of the IC” and are responsible for “allocating SIGINT satellite collection assets against intelligence targets in accordance with priorities and guidance established by the National SIGINT Collection Subcommittee” (p. 190).
•   In FY 2012, the NRO Mission Support project “expects … to accomplish the following:  provide intelligence data to warfighters in the field using mobile devices;  [and] enhance the detection and tracking of maritime vessels” (pp. 261-262).
•   The NRO security program anticipated that it would “complete 15,000 initial and periodic [security] clearance reviews” in FY 2012 (p. 267).
•   The NRO spectrum management program said it would “provide immediate, emergency support in response to real-world frequency interference issues in operational scenarios” (p. 271).

Unlike most other intelligence agencies — and unlike the Department of Defense as a whole — the NRO conducts its finances in a manner that is susceptible to external audit.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” said Ms. Betty Sapp, the new NRO Director, in congressional testimony earlier this year.

The U.S. Air Force this month issued new guidance on “Geospatial-Intelligence (GEOINT).”  See Air Force Instruction 14-132, August 10, 2012.

The Instruction mandates that “All GEOINT activities will be conducted in compliance with applicable laws, policies, and directives.  They will be conducted in a manner that ensures legality and propriety and that preserves and respects privacy and civil liberties.”

New reports from the Congressional Research Service that have not been made available to the public include the following.

Japan’s Possible Entry Into the Trans-Pacific Partnership and Its Implications, August 24, 2012

The Asia-Pacific Economic Cooperation (APEC) Meetings in Vladivostok, Russia:  A Preview, August 16, 2012

501(c)(3) Organizations:  What Qualifies as “Educational”?, August 21, 2012

The Budget Control Act of 2011:  Budgetary Effects of Proposals to Replace the FY2013 Sequester, August 24, 2012

Arms transfers from the United States to other nations increased significantly over the past year, and exceeded previous levels, according to new data reported by the Congressional Research Service.

“In worldwide arms transfer agreements in 2011 — to both developed and developing nations — the United States dominated, ranking first with $66.3 billion in such agreements or 77.7% of all such agreements. This is the highest single year agreements total in the history of the U.S. arms export program,” the CRS report said. “Russia ranked second in worldwide arms transfer agreements in 2011with $4.8 billion in such global agreements or 5.6%. The value of all arms transfer agreements worldwide in 2011 was $85.3 billion, a substantial increase over the 2010 total of $44.5 billion, and the highest worldwide arms agreements total since 2004.”

The 85-page report is filled with an assortment of official arms sales data that was provided to CRS, but that is not generally made available otherwise.

The report was first reported in the New York Times. A copy was obtained by Secrecy News. See Conventional Arms Transfers to Developing Nations, 2004-2011, August 24, 2012.

 

U.S. government guidance on the targeting of nuclear weapons is perhaps the most tightly held of all national security secrets, and “fewer than twenty” copies of the President’s instructions on the subject are extant within the entire Department of Defense.

Following a November 2011 hearing of the House Armed Services Committee, Rep. Michael Turner (R-OH) asked “How many military and civilian personnel in the executive branch have full or partial access to nuclear employment and targeting guidance?”

In newly published responses to questions for the record, Under Secretary of Defense James N. Miller said the answer was “a very small group of personnel in the executive branch.”

“Even within the Department of Defense (DOD), access to this sensitive material is tightly controlled,” Dr. Miller added. “Within the Department of Defense, fewer than twenty copies of the President’s guidance are distributed in the Office of the Secretary of Defense, the Joint Staff, and U.S. Strategic Command.”

The nuclear weapons guidance issued by the Secretary of Defense and the Chairman of the Joint Chiefs to implement the President’s instructions is somewhat more broadly disseminated.

“Fewer than 200 copies of the most recent amplifying guidance issued by the Secretary of Defense were produced, and distribution was limited primarily to Office of the Secretary of Defense, the Joint Staff, U.S. Strategic Command, and other Combatant Commanders. The Chairman’s guidance is distributed more widely within DOD (fewer than 200 copies), as the document assigns responsibilities to several defense agencies and the intelligence community. Commander, U.S. Strategic Command must issue guidance to his planners and forces in the field, so distribution is somewhat wider because of that need.”

What about congressional access?  “How many personnel in the legislative branch have full or partial access to each level of guidance?”, Rep. Turner asked.

Dr. Miller declined to answer that question directly.

“There is a long history of debate about providing the legislative branch access to this material,” he said. “As a result, instances of providing access to a member of Congress and senior staff personnel have been quite limited and under restrictive terms.”

In fact, the history of debate over congressional access to nuclear targeting information was never conclusively resolved, as far as is publicly known.  In 2000, then-Sen. Robert Kerrey criticized the Department of Defense repeatedly for refusing to provide the information.

“As elected representatives of the people, and with a Constitutional role in determining national security policy, Congress should have an understanding of the principles underpinning our nuclear policy. Both the guidance provided by the President and the details of the SIOP [nuclear weapons targeting plan] are necessary for us to make informed national security decisions,” Sen. Kerrey said on the Senate floor on June 30, 2000.

Sen. Kerrey wrote to then-Secretary of Defense William Cohen seeking an explanation of the Department’s policy on congressional access to nuclear targeting information.  But no reply was ever received.

In the newly released questions for the record, which address a multiplicity of nuclear policy issues, Rep. Turner also asked “How many military personnel have full or partial access to STRATCOM’s OPLAN 8010?”, referring to the U.S. Strategic Command nuclear war plan.

“Full access to all portions of OPLAN 8010 is limited to our most senior leadership,” replied Gen. C. Robert Kehler, STRATCOM Commander.

For background on OPLAN 8010, see Obama and the Nuclear War Plan by Hans M. Kristensen, Federation of American Scientists, February 2010.

If the former Navy SEAL who co-authored a new book about killing of Osama bin Laden signed a non-disclosure agreement for access to “sensitive compartmented information” (i.e., classified intelligence information), then he was obliged to submit his manuscript to the government for prepublication review even if he believed that it contained no classified information.

A sample SCI non-disclosure agreement that is used by the Department of Defense is here.

If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act.  But even if it did not contain classified information, its publication without prior review could be deemed a breach of contract, with the proceeds subject to seizure by the government.

The government’s authority to enforce a non-disclosure agreement in this way was affirmed by a federal court most recently in the case of USA v. Ishmael Jones.  In that case, Jones (the pseudonym of a former CIA officer) published his manuscript without completing the prepublication review process.

Last week, Adm. William H. McRaven of U.S. Special Operations Command condemned the disclosure of classified information by former special operators, as well as other forms of activism that tended to politicize the service.

“While as retired or former service members, they are well within their rights to advocate for certain causes or write books about their adventures, it is disappointing when these actions either try to represent the broader S.O.F. community, or expose sensitive information that could threaten the lives of their fellow warriors,” McRaven wrote in an email to all special operations personnel.

“We will pursue every option available to hold members accountable, including criminal prosecution where appropriate,” he wrote, as reported by Kimberly Dozier of the Associated Press.

“Today, U.S. Special Operations Forces are in 78 countries around the world supporting U.S. policy objectives,” Adm. McRaven told Congress last March.

The SOCOM budget request for FY2013 is $10.4 billion.  “The FY 2013 budget includes 21 construction projects in nine states, one overseas, and one at a classified location,” Adm. McRaven said in the 2012 SOCOM posture statement.

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

Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, August 21, 2012

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated August 17, 2012

Iraq: Politics, Governance, and Human Rights, updated August 21, 2012

An Overview of the “Patent Trolls” Debate, August 20, 2012

New reports from the Congressional Research Service on diverse topics of current interest are provided below.  Pursuant to congressional policy, CRS is prohibited from making these documents directly available to the public.

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, August 16, 2012

Turkmenistan: Recent Developments and U.S. Interests, updated August 17, 2012

Pipeline Cybersecurity: Federal Policy, August 16, 2012

Gifts to the President of the United States, August 16, 2012

Health Insurance Exchanges Under the Patient Protection and Affordable Care Act (ACA), August 15, 2012

Crisis in Mali, August 16, 2012

JP Morgan Trading Losses: Implications for the Volcker Rule and Other Regulation, August 16, 2012

Why Some Fuel-Efficient Vehicles Are Not Sold Domestically, August 17, 2012

Armed Conflict in Syria: U.S. and International Response, updated August 20, 2012

The Palestinians: Background and U.S. Relations, updated August 17, 2012

A federal court yesterday dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California.  The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case.

The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.”

The government said various aspects of the subject were too sensitive to be addressed in open court.  Last year, Attorney General Eric Holder filed a declaration asserting that several categories of information pertaining to the case were protected by the state secrets privilege and their disclosure “could reasonably be expected to cause significant harm to the national security.”

Yesterday, Judge Cormac J. Carney of the Central District of California agreed and he issued an order dismissing most of the plaintiffs’ claims.

“Further litigation,” he wrote, “would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.”

In his order, Judge Carney also reflected more broadly on the function of the state secrets privilege and its implications for individual liberties.

“The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest,” he wrote.

It follows that “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

“The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies.”

“Plaintiffs raise the specter of Korematsu v. United States… and protest that dismissing their claims based upon the state secrets privilege would permit a ‘remarkable assertion of power’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘counterterrorism’ and ‘state secrets.’ But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here.”

“The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds,” Judge Carney wrote.

The ACLU of Southern California said it would appeal the decision, the Los Angeles Times reported today.

In a September 2009 policy statement on state secrets, the Attorney General pledged to refer credible claims of wrongdoing that had been dismissed on state secrets grounds to an agency Inspector General for review.  It is unknown whether such a referral has occurred in this case, or indeed if it has ever occurred.  The Department of Justice recently refused to answer a congressional inquiry on the subject.

Recent products of the Congressional Research Service that CRS has not been authorized to release to the public include the following.

Gun Control Legislation, August 3, 2012

El Salvador: Political, Economic, and Social Conditions and U.S. Relations, August 13, 2012

Honduran-U.S. Relations, July 25, 2012

Cuba: U.S. Restrictions on Travel and Remittances, July 24, 2012

Cyprus: Reunification Proving Elusive, August 13, 2012

Kazakhstan: Recent Developments and U.S. Interests, August 10, 2012

New reports from the Congressional Research Service that have not been released to the public include the following.

Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation, August 9, 2012

The Speech or Debate Clause: Constitutional Background and Recent Developments, August 8, 2012

FY2013 National Defense Authorization Act: Selected Military Personnel Policy Issues, August 9, 2012

Major Fiscal Issues Before Congress in FY2013, August 10, 2012

FY2013 Appropriations: District of Columbia, August 10, 2012

Newly updated editions of earlier CRS reports that Congress has also not made readily available to the public include these:

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, August 10, 2012

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, August 10, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, August 10, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, August 10, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, August 10, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, August 10, 2012

Budget “Sequestration” and Selected Program Exemptions and Special Rules, August 9, 2012

A coalition of public interest groups asked the Senate and House Intelligence Committees to preserve an existing requirement for the Intelligence Community to produce an annual report on the number of security clearances.  “We believe the annual report on security clearances provides exceptional value to the public and should continue to be published,” the groups wrote.  The Senate Intelligence Committee markup of the 2013 intelligence authorization bill would repeal the reporting requirement.

Last week the Senate confirmed four of the five nominees to the long-dormant Privacy and Civil Liberties Oversight Board.  The nominations of James Dempsey, Elisabeth Collins Cook, Rachel Brand and Patricia Wald were unanimously confirmed.  For unexplained reasons, the Senate did not act upon the nomination of David Medine to serve as Board chairman.

The Naval Criminal Investigative Service contacted the Wired Danger Room blog to inquire where its reporter obtained a certain unclassified document five years ago and to ask that the document, which was marked “for official use only,” be taken offline.  “Danger Room, through its attorney, declined to provide the information, or to answer any questions related to the reporting of the story.  The document has not been removed.”  A government information security official not involved in the matter said it was possible there was more to the story than appeared on the surface.  “If the [NCIS] investigation is about the FOUO document, then it’s ridiculous. If it’s about something else, we might not ever know.”

The House Intelligence Committee filed its report on the extension of the FISA Amendments Act.  Like its counterparts on the Judiciary Committee, the Intelligence Committee rejected amendments that would shorten the extension of the law and increase public oversight of its implementation.

With little fanfare or self-congratulation, the National Reconnaissance Office and the National Security Agency have been steadily declassifying and releasing historical intelligence records.  “This tremendous amount of information released in the past year is credit to an impressive declassification program within the intelligence services,” wrote historian Dwayne Day in an assessment of the latest NRO releases. “The US military and intelligence space programs during the first couple of decades of the space age can now be described in incredible detail and understood far better than before.”