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

Lean Finely Textured Beef: The “Pink Slime” Controversy, April 6, 2012

Government Procurement in Times of Fiscal Uncertainty, April 9, 2012

An Analysis of STEM Education Funding at the NSF: Trends and Policy Discussion, April 9, 2012

Federal Depository Library Program: Issues for Congress, March 29, 2012

Export-Import Bank: Background and Legislative Issues, April 3, 2012

The Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR): Developments in Trade and Investment, April 9, 2012

It is possible to imagine all kinds of changes in government secrecy policy that would make the secrecy system smaller, more efficient, more susceptible to error correction, and more attuned to shifting security requirements.

Such changes might include, for example, self-cancelling classification markings, numerical limits on classification activity, broadly distributed oversight and declassification authority, new mechanisms for challenging classification decisions, and so on.

But before any such change could be adopted in practice, it would almost certainly need to be tested and validated for use, particularly if it involved a real departure from current procedures.

A classification policy “test bed” in which a variety of new classification policies could be put into practice on a limited scale would therefore be desirable, and would signify a non-rhetorical commitment to policy change.

It is interesting to note that the need to systematically approach change has been recognized in other national security contexts, which might serve as a model for secrecy reform.

The U.S. Army actually has its own Logistics Innovation Agency whose mission is “to provide innovative solutions for improved operational and tactical logistics readiness.”

The Agency “uses well-defined processes of exploration, discovery, demonstration, and transition to integrate logistics solutions that help prepare the Army for uncertain and complex future operating environments,” according to an updated Army regulation published last week.

Similarly, the U.S. Navy has an Office of Innovation that “promotes, fosters, and develops innovative science, technology, processes and policies that support the Department of the Navy.”

These and similar entities might be persuaded or directed to undertake pilot projects on innovations in national security classification.  If successful, such efforts could advance a consensus view of sharply limited secrecy that is more responsive to the public interest in both security and disclosure.

New and newly updated reports from the Congressional Research Service that have not been made readily available to the public include these.

U.S. Oil Imports and Exports, April 4, 2012

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, April 6, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, April 6, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, April 6, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, April 6, 2012

The Republic of the Philippines and U.S. Interests, April 5, 2012

Former CIA officer John C. Kiriakou was indicted yesterday on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act.  He had been charged on January 23 but the indictment was not filed and unsealed until yesterday.

Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it. He is further accused of making false statements to the CIA Publications Review Board in connection with a manuscript he intended to publish.

While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize an expensive and burdensome defense, it is challenging in a different way for the prosecution, which will face a variety of substantive and procedural hurdles.

For one thing, it remains to be shown that the “covert officer” whose identity was allegedly disclosed to a reporter by Kiriakou actually falls within the ambit of the Intelligence Identities Protection Act.  To be subject to the Act’s penalties, the covert officer in question — whose identity has not been publicly revealed — must not only be under cover but must also have served abroad within the past 5 years.

But the prosecution’s biggest challenge, which may well be insurmountable, will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm the United States or to assist a foreign nation by committing an unauthorized disclosure.

The new indictment asserts generally that Kiriakou “had reason to believe [the information] could be used to the injury of the United States and to the advantage of any foreign nation,” which is an element of the crime set forth in the Espionage Act (18 USC 793).

Yet the meaning of this provision was construed by Judge T.S. Ellis III in a 2006 opinion in a way that would seem to make the prosecution of Mr. Kiriakou particularly difficult. In light of that opinion, the government will have to prove not merely that Kiriakou “had reason to believe” some harm to the United States could possibly result from his action, but that he deliberately intended to cause such harm.

This follows from the (alleged) fact that Kiriakou disclosed classified “information” rather than classified “documents,” as well as from the seemingly duplicative Espionage Act use of the terms willfulness and reason to believe, which Judge Ellis interpreted thus:

“If a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for ‘willfully’ committing the prohibited acts even if he viewed the disclosure as an act of patriotism,” Judge Ellis wrote. “By contrast, the ‘reason to believe’ scienter requirement that accompanies disclosures of information requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”  (see pp. 33-34).

But there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

“For more than 14 years, John worked in the field and at home, under conditions of great peril and stress and at great personal sacrifice, dedicating himself to protecting America and Americans from harm at home and abroad,” states a new website devoted to his cause.

Dale R. Corson, a nuclear physicist who died last week, is best remembered as the Cornell University President who peacefully led his campus through the turmoil and upheaval of the Vietnam era.  But he also played an influential role in deliberations over the role of secrecy in scientific research.

Dr. Corson chaired a 1982 committee of the National Academy of Sciences that produced a landmark study entitled “Scientific Communication and National Security,” which became known as the Corson Report.

In sober and measured tones, the Corson Report pushed back against calls for increased secrecy in government-funded science:

“Current proponents of stricter controls advocate a strategy of security through secrecy. In the view of the Panel security by accomplishment may have more to offer as a general national strategy. The long-term security of the United States depends in large part on its economic, technical, scientific, and intellectual vitality, which in turn depends on the vigorous research and development effort that openness helps to nurture…  Controls on scientific communication could adversely affect U.S. research institutions and could be inconsistent with both the utilitarian and philosophical values of an open society.”

President Reagan cited Dr. Corson in National Security Decision Directive 189, “National Policy on the Transfer of Scientific, Technical and Engineering Information,” which seemed to affirm that fundamental research should remain unrestricted to the maximum extent possible.  In fact, however, that directive imperfectly reflected the input of the Corson Report, noted Harold C. Relyea in his book “Silencing Science: National Security Controls and Scientific Communication.”

Still, many of the issues identified by Dr. Corson and his colleagues, and the concerns they expressed, remain current today and have not reached an unequivocal resolution, as evidenced most recently by the latest U.S. government policy on dual use biological research.

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

The U.S. Infant Mortality Rate: International Comparisons, Underlying Factors, and Federal Programs, April 4, 2012

The Peace Corps: Current Issues, April 4, 2012

Women in Combat: Issues for Congress, April 5, 2012

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, April 4, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, April 5, 2012

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, April 4, 2012

National Science Foundation: Major Research Equipment and Facility Construction, April 4, 2012

The Strategic Petroleum Reserve: Authorization, Operation, and Drawdown Policy, April 2, 2012

The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary, April 5, 2012

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

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, April 2, 2012

China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues, March 30, 2012

Fannie Mae’s and Freddie Mac’s Financial Problems, April 2, 2012

Effects of Radiation from Fukushima Dai-ichi on the U.S. Marine Environment, April 2, 2012

Expiring Farm Bill Programs Without a Budget Baseline, March 30, 2012

Afghanistan: Politics, Elections, and Government Performance, March 30, 2012

Military Justice: Courts-Martial, An Overview, March 14, 2012

Renewable Energy R&D Funding History: A Comparison with Funding for Nuclear Energy, Fossil Energy, and Energy Efficiency R&D, March 7, 2012

The growing emphasis on Asia as a focus of U.S. national security planning, known as the “pivot to the Pacific,” is discussed in a new report from the Congressional Research Service.

“Underlying the ‘pivot’ is a conviction that the center of gravity for U.S. foreign policy, national security, and economic interests is being realigned and shifting towards Asia, and that U.S. strategy and priorities need to be adjusted accordingly,” the CRS report says. “For many observers, it is imperative that the United States give more emphasis to the Asia-Pacific. Indeed, for years, many countries in the region have encouraged the United States to step up its activity to provide a balance to China’s rising influence.”

“There are a number of risks to the ‘pivot,’ however. In an era of constrained U.S. defense resources, an increased U.S. military emphasis on the Asia-Pacific region might result in a reduction in U.S. military capacity in other parts of the world. Another budgetary consideration is that plans to restructure U.S. military deployments in Asia and minimize cuts in the Navy may run up against more restrictive funding constraints than plans yet assume.”

“Additionally,” the report says, “the perception among many that the ‘rebalancing’ is targeted against China could strengthen the hand of Chinese hard-liners. Such an impression could also potentially make it more difficult for the United States to gain China’s cooperation on a range of issues. Additionally, the prominence the Obama Administration has given to the initiative has raised the costs to the United States if it or successor administrations fail to follow through on public pledges made, particularly in the military realm.”

Congress is fully entitled to review the emerging policy, which is predicated on congressional action and cooperation, the CRS report said.

“Given that one purpose of the ‘pivot’ or ‘rebalancing’ toward the Asia-Pacific is to deepen U.S. credibility in the region at a time of fiscal constraint, Congress’s oversight and appropriations roles, as well as its approval authority over free trade agreements, will help determine to what extent the Administration’s plans are implemented and how various trade-offs are managed.”

A copy of the report was obtained by Secrecy News.  See Pivot to the Pacific? The Obama Administration’s ‘Rebalancing’ Toward Asia, March 28, 2012.

Other new and updated CRS reports that Congress has declined to make directly available to the public include the following.

Burma’s April Parliamentary By-Elections, March 28, 2012

Guam: U.S. Defense Deployments, March 29, 2012

Commerce, Justice, Science, and Related Agencies: FY2013 Appropriations, March 26, 2012

Certain types of life science research involving “high consequence pathogens and toxins” would be subject to new review and risk mitigation procedures which might include classification of the research or termination of the funding, according to a U.S. government policy issued yesterday by the National Institutes of Health.

The policy applies to research involving 15 specified biological agents and toxins which “pose the greatest risks of deliberate misuse with most significant potential for mass casualties or devastating effects to the economy, critical infrastructure or public confidence.”

Research that increases the lethality or transmissibility of the agent or toxin, or otherwise enhances its harmful consequences, will be subject to the new review procedures.

Based on the outcome of the review, a risk mitigation plan may be developed.  If less restrictive measures were deemed inadequate, the new policy would allow for national security classification of the research or termination of government funding.

See “United States Government Policy for Oversight of Life Sciences Dual Use Research of Concern,” March 29, 2012.

See also “U.S. Requires New Dual-Use Biological Research Reviews” by David Malakoff, Science Insider, March 29.

The factors that could influence an Israeli decision to attack Iranian nuclear targets and the implications of such an act were assessed in a new report from the Congressional Research Service.  The report surveys the multiple dimensions of the issue at length, though it does not appear to provide much new information or original analysis.  See Israel: Possible Military Strike Against Iran’s Nuclear Facilities, March 27, 2012.

Other new or updated CRS reports that Congress has not made directly available to the public include the following.

Iran: U.S. Concerns and Policy Responses, March 23, 2012

Fact Sheet: The FY2013 State and Foreign Operations Budget Request, March 19, 2012

Foreign Assistance to North Korea, March 20, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, March 23, 2012

Cybersecurity: Selected Legal Issues, March 14, 2012

Refugee Admissions and Resettlement Policy, March 7, 2012

Constitutional government in the United States is alive and well.  At least, that is the hopeful conclusion of Jack Goldsmith’s stimulating new book “Power and Constraint.”

Goldsmith, a former head of the Bush Administration’s Office of Legal Counsel, disputes the widely accepted view that traditional checks and balances have been diminished by the war on terrorism.  According to the conventional account, the post-9/11 national security bureaucracy produced waterboarding, detention without trial, unlawful surveillance and other anomalies, while the enforcement of existing legal norms was crippled, oversight bodies were passive and uncommunicative, secrecy was rampant and impunity prevailed.

This is a superficial and erroneous perspective, Goldsmith contends.  If anything, he says, the mechanisms of oversight have flourished as never before and their ongoing impact on national security policy has been profound though not widely recognized.

While there has been nothing like a “truth commission” or a congressional Church Committee investigation to provide a full public account and evaluation of the government’s conduct of the war on terrorism, other types of oversight have more than filled the void, the author argues.  He cites the investigation of the CIA detention and interrogation program by CIA Inspector General John Helgerson, and subsequent reviews.

“No CIA program — including the ones that underlay the Iran-Contra scandal and the many investigated during the Church and the Pike Committee hearings — has ever undergone so much extended or critical scrutiny.  In the process both the CIA and the accountability system governing it changed fundamentally.”

Similarly, through the efficacy of internal and external oversight, the use of torture has been ended, habeas corpus has been reaffirmed, military commissions have been brought under the authority of law, and so forth.

In Goldsmith’s telling, the Presidency is a massively powerful Gulliver which is nevertheless constrained by a growing number of Lilliputian threads that limit executive freedom of action in new and unprecedented ways.  Journalists, military and civilian lawyers, human rights activists and civil liberties organizations are portrayed as powerful and influential forces that have materially altered national policies.  This contention has all the more weight — and cannot be easily dismissed as (self-)flattery or wishful thinking — because the author does not particularly share the agenda of these diverse actors.

“The dizzying and often painful swirl of investigations, lawsuits, reviews, reports, and accusations… forces the government to recalibrate its counterterrorism policies and accountability mechanisms constantly based on ever-changing information and ever-changing legal and political constraints,” he writes.

Yet this does not mean that all is well, or that anyone can rest easy.

“Many… remain alarmed by what they see as endless and undefined war, excessive presidential secrecy, insufficient judicial review of the President’s actions, too much surveillance, inadequate congressional involvement, and many other evils of the post-9/11 presidency.  They continue to push hard against the government with lawsuits, FOIA requests, accountability campaigns, and strident charges against public officials.”

And, he says, that’s good.  “This is all very healthy for the presidency and for national security.”

No one that Goldsmith spoke with — from executive branch and congressional officials to reporters, human rights organizations, and public interest activists — believes that political conditions are optimized to advance their own interests.  “They all believed that they are on the losing end of the stick in trying to influence U.S. counterterrorism policies and their associated accountability mechanisms.”

But what has been achieved, in the author’s view, is “a harmonious system of mutual frustration.”

“Power and Constraint” has many virtues, beginning with its respectful presentation of multiple contrasting perspectives on the issues it explores.

Goldsmith acknowledges the fundamental and destabilizing uncertainties that preclude a final settlement of counterterrorism policy:  “We do not know precisely how serious the Islamist terrorist threat is, or the likelihood of an attack, or its likely location or scale, or how much investment in what types of policies would best prevent attacks.”

Moreover, “even if all of the factual and legal questions were resolved, the assessment of proper counterterrorism policies and accountability mechanisms would still be guided by moral intuitions that are more diverse than we like to admit.  Many find waterboarding, military commissions, and detention without trial repulsive;  many others do not.”

The book includes a nuanced discussion of leaks of classified information, and of the role of secrecy more broadly, as well as the responses it has engendered.

“There are costs and benefits to national security from both secrecy and disclosure,” Goldsmith observes, “but we do not have great tools to measure or compare them.”

The latest issue of the Army’s Military Intelligence Professional Bulletin is devoted to the Human Terrain System (HTS), which is a U.S. Army program to conduct social and cultural studies in support of military operations in Iraq and Afghanistan.  The Bulletin provides theoretical and practical accounts from HTS personnel in the field.

Thus, HTS analyst John Thorne writes that U.S. counterinsurgency operations can themselves generate a violent reaction “by causing shifts in perceptions of relative power or well-being, or through perceived threats to identity.”

The Army released the latest Bulletin in response to a Freedom of Information Act request.

The Human Terrain System program has been controversial among some social scientists who believe it wrongly subordinates scientific research to U.S. military imperatives.