The Open Society Foundations will host a discussion on “National Security Secrecy and Surveillance: Defending the Public’s Right to Know” on April 4 in New York City.

I will moderate a panel of speakers including NSA whistleblower Thomas Drake, Jesselyn Radack of the Government Accountability Project, investigative journalist Timothy Shorrock, and ACLU attorney Jameel Jaffer.

Seating is limited.  For more information and to RSVP see here.

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A certain technology that could extend the mission duration and capabilities of unmanned aerial vehicles (UAVs) was favorably assessed last year by scientists at Sandia National Laboratories and Northrop Grumman Systems Corporation.  But they concluded regretfully that “current political conditions will not allow use of the results.”

The assessment was carried out to explore the feasibility of next generation UAVs.  The objective was “to increase UAV sortie duration from days to months while increasing available electrical power at least two-fold,” according to a June 2011 Sandia project summary.

And that objective could have been achieved by means of the unidentified technology, which “would have provided system performance unparalleled by other existing technologies,” the project summary said.

“As a result of this effort, UAVs were to be able to provide far more surveillance time and intelligence information while reducing the high cost of support activities.  This technology was intended to create unmatched global capabilities to observe and preempt terrorist and weapon of mass destruction (WMD) activities.”

But it was all for nought.

“Unfortunately, none of the results will be used in the near-term or mid-term future,” the project summary stated.  “It was disappointing to all that the political realities would not allow use of the results.”

Not only that, but “none of the results can be shared openly with the public due to national security constraints.”

On close reading, it seems clear that the Sandia-Northrop project contemplated the use of nuclear technology for onboard power and propulsion.

The project summary, which refers to “propulsion and power technologies that [go] well beyond existing hydrocarbon technologies,” does not actually use the word “nuclear.”  But with unmistakable references to “safeguards,” “decommissioning and disposal,” and those unfavorable “political conditions,” there is little doubt about the topic under discussion.

Furthermore, the project’s lead investigator at Sandia, the aptly named Dr. Steven B. Dron, is a specialist in nuclear propulsion, among other things.  He co-chaired a session at the 2008 Symposium on Space Nuclear Power and Propulsion at the University of New Mexico.

Interestingly, opposition to flying nuclear power sources in this case was internalized without needing to be expressed, and the authors were self-deterred from pursuing their own proposals.  “The results will not be applied/implemented,” they stated flatly.

Meanwhile, integration of (conventional) unmanned aircraft systems into the National Airspace System will proceed, as mandated by Congress.  On March 6, the Federal Aviation Administration issued a request for public comments on the pending designation of six UAS test sites around the country.

Last month, the Electronic Privacy Information Center and other public interest organizations petitioned the FAA “to conduct a rulemaking to address the threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.”

Update: Sandia National Laboratories issued the following statement regarding this story:

“Sandia is often asked to look at a wide range of solutions to the toughest technical challenges. The research on this topic was highly theoretical and very conceptual. The work only resulted in a preliminary feasibility study and no hardware was ever built or tested. The project has ended.”

The Government Accountability Office has overcome longstanding opposition to its role in intelligence oversight, and has been conducting several projects involving oversight of intelligence agencies.  A classified GAO review of FBI counterterrorism programs has been completed, and a GAO investigation of the role of contractors in intelligence is in progress.

Last year, acting at congressional direction, Director of National Intelligence James Clapper issued an Intelligence Community Directive that authorized and required U.S. intelligence agencies to cooperate with GAO investigators, with certain restrictions.  (“Intelligence Agencies Are Told to Cooperate with GAO,” Secrecy News, May 16, 2011).

That DNI directive appears to have broken the logjam of agency resistance, and at least some parts of the intelligence community that previously rebuffed GAO inquiries have become completely cooperative, congressional officials said.

Thus, the Federal Bureau of Investigation had refused for years to submit to GAO oversight of its counterterrorism programs.  The Bureau contended that GAO had no authority to review the programs because they were funded through the intelligence budget.  Moreover, the FBI told Sen. Charles Grassley that the Office of Legal Counsel had ratified that position and supported its refusal to cooperate with GAO.

But that is now in the past.  The GAO recently completed a classified assessment of FBI counterterrorism programs with full cooperation from the FBI.  A public version of the report is expected to be released sometime in the spring.

Another current GAO project explores “Civilian Agencies’ Reliance on Contractors.”  An unclassified statement of work for the project that was obtained by Secrecy News explains:

“When intelligence agencies rely on contractors for professional and management support services that inform government decisions, the risk of contractors unduly influencing these decisions is increased.  However, the extent to which this risk has been considered and managed is uncertain.”

The GAO project therefore aims to answer the following questions:

“(1) To what extent do civilian intelligence agencies rely on and strategically review their reliance on contractors to perform critical professional and management support services?  (2) To what extent do these agencies have policies and guidance that address the use of contractors for these services?  (3) What steps have these agencies taken to manage the risks associated with using contractors for these services?  (4) To what extent have these agencies addressed challenges with retaining federal personnel?”

GAO’s newly enhanced participation in the oversight process is the outcome of years of advocacy and debate involving a variety of interested parties.  Testimony on the subject from the Federation of American Scientists in 2008 is here.

The arduous process by which an accommodation was finally reached is detailed in a newly updated report from the Congressional Research Service.  See Congressional Oversight of Intelligence: Current Structure and Alternatives, March 14, 2012 (esp. pp. 25-30).

By itself, GAO’s involvement in intelligence oversight is unlikely to resolve many controversies in intelligence policy.  It may not resolve any of them.  But what it can do is to expand the current capacity of intelligence oversight, bringing new resources to bear and increasing the likelihood that intelligence activities are carried out consistent with law and good policy.

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Scientist Stewart Nozette has pleaded guilty to attempted espionage and will be sentenced this week to an anticipated 13 year prison term.  But he never committed espionage in fact and he would never have considered the possibility if he had not been “manipulated and exploited” by FBI agents, his attorneys wrote in a lengthy rebuttal to a pre-sentencing memorandum filed by the government last week (“Scientist Nozette Called Brilliant, Greedy Traitor,” Secrecy News, March 13.)

“Contrary to poisonous inferences which the government spread on the public record in its initial Complaint and the detention hearing, this case is not about a man who had been committing acts of espionage for years,” Nozette’s attorneys wrote.  “Rather this case is about the FBI wrongly suspecting Dr. Nozette was spying for Israel and then malevolently targeting him in the hopes they could ultimately ensnare him within the nation’s espionage laws.”

From their very first meeting, the FBI undercover agent “ignor[ed] Dr. Nozette’s stated intent not to provide classified information and overtly encourag[ed] him to proceed otherwise,” the attorneys wrote in what they said was simply an effort to correct the record.

“Dr. Nozette is neither attempting to withdraw from his plea nor evade responsibility for his conduct.  His response to the UC’s [undercover agent’s] entreaties was inappropriate and ill-advised regardless of the devious, manipulative and exploitive nature of those overtures….  But it is important that the public, and the scientific community in particular, be aware of the tactics engaged in and the judgment, or lack thereof, exercised by the agents of the FBI and the Department of Justice in this case.”

“At the end of the day it was the agents of the FBI who approached Dr. Nozette, not the other way around;  and it was those same agents who created, manipulated and exploited the circumstances that led to this offense and sadly to Dr. Nozette’s unnecessary fall and disgrace,” they concluded.

Government attorneys immediately filed a reply, rejecting what they called “spurious allegations and attacks against dedicated law enforcement agents.”

“In the end, defendant is the only person to blame for his predicament,” they wrote.  “There is no excuse for betrayal of one’s country.  There is no excuse for defendant’s conduct.”

Update: On March 21, Stewart Nozette was sentenced to a 13 year prison term.

Some new or updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Congressional Oversight of Agency Public Communications:  Implications of Agency New Media Use, March 14, 2012

The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2010-FY2013, March 15, 2012

Russia’s March 2012 Presidential Election:  Outcome and Implications, March 14, 2012

The American soldier who is accused of killing 16 Afghan civilians is under the legal jurisdiction of the U.S. government and is immune from prosecution under Afghan law, says a newly updated report from the Congressional Research Service.

Afghan officials had said they wanted the soldier to be tried in Afghanistan, not in an American military court, the New York Times and other press outlets reported.

But according to CRS, the Status of Forces Agreement (SOFA) between the US and Afghanistan dictates otherwise.

“In the case of Afghanistan, the SOFA, in force since 2003, provides that U.S. Department of Defense military and civilian personnel are to be accorded status equivalent to that of U.S. Embassy administrative and technical staff under the Vienna Convention on Diplomatic Relations of 1961,” the CRS report said.

“Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The Government of Afghanistan has further explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel.”

“Thus, under the existing SOFA, the United States would have jurisdiction over the prosecution of the servicemember who allegedly attacked the Afghan civilians.”

A copy of the CRS report was obtained by Secrecy News. See Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, March 15, 2012.

After former CIA officer Ishmael Jones wrote a book about the CIA without gaining prior approval from the Agency, the government sought and won a judicial ruling that Jones had acted in violation of his CIA secrecy agreement, and that he could be held liable for the breach.

But the government’s current efforts to seize the financial proceeds from Jones’ 2010 book, “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture,” have been frustrated by the fact that the author has already given the proceeds away to charity.

In responses to interrogatories that were presented in a government motion last week, Mr. Jones (a pseudonym) said that he had received $29,750 from the publication of his book.  But when he got the money, he placed it in custodial accounts for children of American soldiers who died in combat.

“Once Mr. Jones received the Payments, he created accounts that he manages but does not own,” his attorney explained to the government.  “All Accounts are located at Vanguard.  The accounts are Uniform Gift to Minors Accounts at Vanguard for four children and [another] Vanguard LLC jointly owned by five children.”

“Of the total of nine children, eight are children of American soldiers killed in action.  The ninth is not a U.S. citizen and is the daughter of an Iraqi agent with whom Ishmael Jones worked and was later murdered.  The amount of author profits deposited into these accounts is 100%.  The children that own these accounts will be able to take possession of them when they reach the age of 18.”

The government acknowledged that “there is no evidence that Jones retained any proceeds from the sale of ‘The Human Factor’; instead, he appears to have given his profits away.”

Under the circumstances, the government is not seeking to recover those proceeds.  “The United States is not seeking to impose a constructive trust over proceeds over which Jones lacks possession or control.”

Instead, the government asked the court to rule that in the future Jones should not be allowed to retain any additional proceeds that he may receive.

“The United States is entitled to a constructive trust over any future revenues, gains, profits, royalties, or other financial advantages from ‘The Human Factor’ that Jones derives,” the government motion said.

In the responses to interrogatories, Jones’ attorney said “Mr. Jones may receive additional payments from future book sales, but [he does] not expect such payments to occur.”

Meanwhile, “the accounts [Jones] set up for minor children are taxable accounts and therefore contributions to them are not eligible for tax deductions. Mr. Jones pays the taxes on those accounts.”

Income inequality in the United States is more pronounced than in other developed countries, a new report from the Congressional Research Service finds, while the possibility of economic mobility is more constrained than commonly believed.

“Based on the limited data that are comparable across nations, the U.S. income distribution appears to be among the most uneven of all major industrialized countries and the United States appears to be among the nations experiencing the greatest increases in measures of inequality.”

“Americans may be less concerned about inequality in the distribution of income at any given point in time partly because of a belief that everyone has an equal opportunity to move up the income ladder. A review of the literature suggests that Americans’ perceptions about their likelihood of changing position in the income distribution may be exaggerated,” the CRS report said.

“It… appears that going from rags to riches is relatively rare; that is, where one starts in the income distribution greatly influences where one ends up.”  See The U.S. Income Distribution and Mobility: Trends and International Comparisons, March 7, 2012.

Other new and updated CRS reports that Congress has withheld from direct public access include the following.

Changing the Federal Reserve’s Mandate: An Economic Analysis, March 13, 2012

Cybersecurity: Cyber Crime Protection Security Act (S.2111) — A Legal Analysis, March 12, 2012

Change in the Middle East: Implications for U.S. Policy, March 7, 2012

U.S. Foreign Aid to Israel, March 12, 2012

Cuba: Issues for the 112th Congress, February 24, 2012

Europe’s Energy Security: Options and Challenges to Natural Gas Supply Diversification, March 13, 2012

Two weeks ago, Judge Richard W. Roberts issued an extraordinary ruling that a secret government document was not properly classified and must therefore be released under the Freedom of Information Act. (“Court Says Agency Classification Decision is Not ‘Logical’,” Secrecy News, March 2.)

Now the question is whether the government will accept the ruling and abide by it, or challenge it.

That hasn’t been decided yet.  The U.S. Trade Representative (USTR), which classified the document, “has not yet determined whether to appeal the February 29 judgment,” the court was told in a stipulation filed this week.

But the choice that the government makes could have far-reaching implications.  What is at stake is whether or not the Freedom of Information Act can serve as an effective means to curb overclassification.

If Judge Roberts’ ruling stands, and the document is released, the judicial system will have succeeded in correcting a manifest classification error despite the prior failure of all executive branch oversight mechanisms to do so.  The ruling would serve as a precedent and an inspiration for further classification challenges.

The document itself is probably of limited interest and its disclosure of little concern to the Administration.  But the court ruling requiring its disclosure is a different matter that raises potentially thorny issues.

There is a school of thought which holds that national security classification is exclusively an executive branch function that stems from the President’s constitutional role as commander-in-chief of the armed forces.  From this point of view, any judicial incursion on classification decisions is an intolerable infringement on presidential authority.

Taken to an extreme, this perspective would imply that the Freedom of Information Act itself is unconstitutional.  The FOIA allows for independent judicial review of executive branch classification decisions, and creates at least the possibility that those decisions will be overturned, as in the present case.

This conflict between the FOIA and an expansive view of executive authority normally remains latent, because judges almost never order an agency to release a classified document.  Instead, courts typically defer to the executive on questions of national security.  In close cases, and when an agency senses that its own position is weak, it will often declassify and release a document without being ordered by the court to do so.  It thereby preserves at least the appearance of autonomy and exclusivity in classification policy.

On the rare occasions when a court has ordered declassification or release of a classified document, the decision has usually been vacated on appeal or mooted for technical reasons.  See this 1995 Justice Department “History of Exemption 1 Disclosure Orders.”  With Judge Roberts’ ruling, that history will need to be revised.

New mechanisms for correcting classification errors and abuses are needed throughout the national security classification system.  Judge Roberts’ decision holds the promise that the courts could serve as one such mechanism.  But this promise will be realized only if the Obama Administration accepts the principle of judicial review of classification decisions.

What would happen if a 10 kiloton nuclear explosive were detonated in downtown Washington, DC at the intersection of 16th and K Streets NW?

That question is posed by a recent study (large pdf) performed for the Federal Emergency Management Agency.  It assesses the impact of a nuclear terrorism incident in the nation’s capital and seeks to derive the appropriate lessons for emergency response planning purposes.

It is clear that a nuclear detonation would “overwhelm response resources in the area.”  On the other hand, “the existing Washington, DC structures offered better than adequate protection [for a] shelter-in-place strategy [that] would reduce the number of potential acute radiation casualties by 98%,” the study said.

See “National Capital Region: Key Response Planning Factors for the Aftermath of Nuclear Terrorism” by B.R. Buddemeier, et al, Lawrence Livermore National Laboratory, November 2011.

Scientist Stewart Nozette, who pleaded guilty to attempted espionage after offering to sell classified information to an undercover FBI agent who posed as an Israeli intelligence officer, will be sentenced this month to a likely term of 156 months incarceration.

In a dismal sentencing memorandum this week, the government portrayed Nozette as both gifted and twisted.

“That defendant [Nozette] was by all accounts a brilliant scientist makes this crime especially troubling,” the memo stated.  “His statement to the undercover FBI agent that anything ‘that the U.S. has done in space I’ve seen’ was not hyperbole.”

“Defendant’s experience in the space arena was diverse and impressive.  His related accomplishments in the field were matched by few, if anyone else, on the planet.”

But “despite his exceedingly comfortable lifestyle in Chevy Chase, Maryland, he had expensive tastes which stretched him financially.  He thus chose to supplement his income unlawfully…. Defendant all too eagerly agreed to be a traitor to the United States and did so with obvious glee and with no apparent remorse or hesitation,” the memo said.

Dr. Nozette, whom I knew slightly years ago, “has a profound intellectual gift. One need only walk steps away from the courthouse to the National Air and Space Museum of the Smithsonian Institution to view the prototype of the Clementine satellite, part of the Clementine bi-static radar experiment which purportedly discovered ice on the south pole of the moon, the concept for which defendant first sketched out in a burst of brilliance on a paper napkin.”

“He has squandered his considerable gift…. His legacy now, first and foremost, is not what is found within the Smithsonian Institution or within various Sensitive Compartmented Facilities throughout various agencies of the United States. His legacy is now what has occurred before this Court. He is someone who agreed to be a traitor to the United States. For all of the defense arguments about his state of mind at the time of the crime, he remains, at his core, a man willing to betray his country because of greed,” prosecutors told the court.

As a condition of his plea agreement, which lowered his sentence recommendation from 262 months to 156 months, Nozette was debriefed by law enforcement and intelligence officials.  But “the value of these debriefings was limited. Defendant provided no actionable information. There were times that defendant’s professed lack of recollection was baffling. There were other times when the FBI assessed that defendant gave uncooperative, less than complete, or untruthful responses. The Government, however, will not seek to hold defendant in breach of his plea agreement as, in the end, this plea results in an acceptable sentence, and saves the Government enormous resources.”

Nozette’s sentencing hearing is scheduled for March 21 in DC District Court.

As long ago as the Gerald Ford Administration, the National Security Agency was directed to help secure non-governmental communications networks against intrusion and interception by foreign — or domestic — entities, according to a recently declassified presidential directive.

“The President is concerned about possible damage to the national security and the economy from continuing Soviet intercept of critical non-government communications, including government defense contractors and certain other key institutions in the private sector,” wrote National Security Advisor Gen. Brent Scowcroft in National Security Decision Memorandum (NSDM) 338 of September 1, 1976.

“The President further recognizes that U.S. citizens and institutions should have a reasonable expectation of privacy from foreign or domestic intercept when using the public telephone system. The President has therefore decided that communication security should be extended to government defense contractors dealing in classified or sensitive information at the earliest possible time. He has also directed that planning be undertaken to meet the longer-term need to protect other key institutions in the private sector, and, ultimately, to provide a reasonable expectation of privacy for all users of public telecommunications.”

The directive ordered that “in confirmed threat areas,” existing communications networks involving classified information should be transitioned from microwave circuits to secure cable “as soon as possible.”  A broader plan to protect non-governmental communications was also to be prepared.

“The President further directs the Director of the Office of Telecommunications Policy, with the participation and assistance of DOD and NSA, to prepare a detailed Action Plan setting forth the actions and schedule milestones necessary to achieve a wide degree of protection for private sector microwave communications. The Plan should identify needed policy and regulatory decisions, describe in detail the roles of industry and government, including management and funding considerations, and integrate the schedule for these actions with the technical development milestones.”

“The Action Plan should be based on the fundamental objective of protecting the privacy of all users of public telecommunications, as well as satisfying specific needs of the government,” the directive stated.

The 1976 directive was originally marked TOP SECRET / SENSITIVE (XGDS), where XGDS stood for “exempt from general declassification schedule.”  It was declassified on September 13, 2011.  The document had been requested through the mandatory declassification review process by Dr. John Laprise of Northwestern University.

The directive prefigures an ongoing controversy over the proper role, and the actual extent, of National Security Agency involvement in securing public communications.

In response to a FOIA lawsuit brought by the Electronic Privacy Information Center, the NSA said (and a court affirmed) that it could “neither confirm or deny” a relationship between the Agency and Google.  NSA has also refused to release the 2008 National Security Presidential Directive 54, which reportedly tasks the Agency with certain cybersecurity functions.