The Watergate scandal was a formative episode in American political culture that powerfully reinforced public skepticism towards government and fostered a heroic image of the intrepid reporter aided by his truth-telling source.  But the reality, as usual, is more complicated than the received narrative.  In a fascinating new book, “Leak: Why Mark Felt Became Deep Throat,” Max Holland probes deep into the record of Watergate to illuminate some of those complications.

The question that Holland sets out to answer is the nature of “Deep Throat’s” agenda.  What drove FBI official Mark Felt to disclose sensitive investigative information about the Watergate burglary and the ensuing coverup to Bob Woodward of the Washington Post?  What were his motivations and what was he hoping to accomplish?

Holland pays close attention to what Felt told Woodward (and when), what Felt could have told Woodward but did not, and what he told Woodward that was not actually true.

His conclusion, spelled out at the beginning of the book, is that Felt’s actions are best understood in the context of the struggle over who would succeed J. Edgar Hoover as director of the FBI.  Felt hoped it would be him.

“More than any other single factor, the desperate, no-holds-barred war of succession explains why Mark Felt did what he did, and to a considerable extent, why the scandal played out in the media as it did,” Holland writes.  “The contest to succeed Hoover was perceived as a once-in-a-generation opportunity, and it brought out the worst in the Bureau and Mark Felt.”

“The portrait of Felt that emerges when we follow this thread does not resemble any of Bob Woodward’s depictions,” in Holland’s judgment.  “Felt held the news media in contempt and was neither a high-minded whistle-blower, nor was he genuinely concerned about defending his institution’s integrity.”

“Woodward believed that he and Felt were on the same side, allies in the struggle to expose the facts and larger truth.  For Felt, however, their relationship was simply a means to the end of becoming FBI director.  If that end was best served by salting the information he gave Woodward with details that had only a casual relationship with the facts, so be it.”

Strictly speaking, Felt’s motives in leaking information are of secondary importance, if not quite irrelevant.  Holland cites an observation by Timothy Noah that “If the free flow of vital information about our government depended on the purity of heart of all concerned, we would know very little.  Happily, we are as likely to learn what we need to know through the pursuit of cheap advantage.”

Still, Holland says, “a recognition that Felt was seeking personal advancement first and foremost would have led to heightened scrutiny of his claims and a better version of the obtainable truth.”

More broadly, a reader of the book will be reminded to question the motives of sources, especially anonymous sources.  Further, one may conclude that the mantle of “whistleblower” is not one to be lightly claimed or bestowed.  (Some may feel that publishing collections of stolen email, for example, does not qualify.)

“Leak” is a work of impressive scholarship, yet it is vividly told and quite engrossing.  Reading it on the subway, I missed my stop.  The book benefits from the intrinsic drama of Watergate, and from the enduring impact of Woodward and Bernstein’s book (and Redford’s movie) “All the President’s Men.”  For better or worse, the story is one that transcends its time.

“Leak: Why Mark Felt Became Deep Throat” by Max Holland was published last week by University of Kansas Press.

The book was recently reviewed by Jack Shafer, Glenn Garvin, and John Dean.

U.S. special operations forces are engaged in “more than 100 countries worldwide,” said Adm. William H. McRaven, commander of U.S. Special Operations Command (SOCOM), in testimony before the Senate Armed Services Committee yesterday.

“In significant ways, our forces are creating visible and dramatic effects of the greatest magnitude across the globe,” Adm. McRaven said in the 2012 US SOCOM posture statement.

“The decade of war after 9/11 has proffered many lessons; among them, specific to SOF, is the complementary nature of our direct and indirect approaches and how these SOF approaches are aligned to this changing strategic environment,” Adm. McRaven said.

“The direct approach is characterized by technologically-enabled small-unit precision lethality, focused intelligence, and interagency cooperation integrated on a digitally-networked battlefield…. Extreme in risk, precise in execution and able to deliver a high payoff, the impacts of the direct approach are immediate, visible to the public and have had tremendous effects on our enemies’ networks throughout the decade.”

“However, the direct approach alone is not the solution to the challenges our Nation faces today as it ultimately only buys time and space for the indirect approach and broader governmental elements to take effect. Less well known but decisive in importance, the indirect approach is the complementary element that can counter the systemic components of the threat.”

“The indirect approach includes empowering host nation forces, providing appropriate assistance to humanitarian agencies, and engaging key populations. These long-term efforts increase partner capabilities to generate sufficient security and rule of law, address local needs, and advance ideas that discredit and defeat the appeal of violent extremism.”

“As Al Qaeda and other extremist organizations attempt to franchise their ideology and violence globally, we will likely remain engaged against violent extremist networks for the foreseeable future,” he said.

In a rare unclassified “notification of special forces operation,” President Obama formally advised Congress last January of the rescue of an American in Somalia.

“At my direction, on January 24, 2012, U.S. Special Operations Forces conducted an operation in Somalia to rescue Ms. Jessica Buchanan, a U.S. citizen.  The operation was successfully completed,” President Obama wrote.  The report was transmitted “as part of my efforts to keep the Congress fully informed.”

“In accordance with United States law, the U.S. Government places conditions on the use of defense articles and defense services transferred by it to foreign recipients,” a new report from the Congressional Research Service explains. “Violation of these conditions can lead to the suspension of deliveries or termination of the contracts for such defense items, among other things.”

In practice, however, no clear-cut violations have been found, so no contracts have been terminated.

“Since the major revision of U.S. arms export law in 1976, neither the President nor the Congress have actually determined that a violation did occur thus necessitating the termination of deliveries or sales or other penalties set out in section 3 of the Arms Export Control Act.”

On the other hand, the U.S. government has occasionally exercised options short of termination, including temporary suspension of weapon deliveries and refusal to allow new arms orders.

In the past, “The United States has utilized at least one such option against Argentina, Israel, Indonesia, and Turkey.”  Background on each of those cases is provided in the new CRS report.  A copy of the report was obtained by Secrecy News.

See U.S. Defense Articles and Services Supplied to Foreign Recipients: Restrictions on Their Use, March 6, 2012.

 

Questions of compliance with law now arise in every aspect of U.S. military operations, including the most highly classified clandestine activities, and so legal assistance must be routinely factored into military planning and mission execution.  A newly updated Army manual describes the diverse forms of legal support to military operations.

“Legal issues are a fundamental part of modern military operations,” the manual observes.  “Assigning JAGC [Judge Advocate General’s Corps] Soldiers directly to warfighting units has become commonplace.”

“While the legal intensity of military operations is a relatively recent phenomenon, lawyers in uniform are not new” and date back to pre-Revolutionary War times.

“Judge advocates serve at all levels in today’s are of operations and advise commanders on a wide variety of operational legal issues.  These issues include the law of war, rules of engagement, lethal and nonlethal targeting, treatment of detainees and noncombatants, and military justice.”

“Following the terrorist attacks of 11 September 2001, JAGC Soldiers have deployed in large numbers in support of operations in Afghanistan, Iraq, and elsewhere.  Current operations continue to give rise to significant legal issues.  As a result, judge advocates are in high demand in operations.”

The need for legal support extends to irregular warfare and clandestine missions performed by special operations forces (SOF).

“The practice of international and operational law is of particular emphasis as special operations missions are legally and politically sensitive, especially in the absence of international armed conflict,” the manual states.  “Judge advocates advise the commander on traditional law of war issues, as well as the requirements of domestic United States law (such as fiscal, security assistance, and intelligence oversight laws) and broader international law requirements.”

“Due to the political sensitivities associated with many SOF direct action missions, judge advocates [must] thoroughly understand the rules of engagement.”

“In many instances, special forces will conduct counterterrorism operations unilaterally due to the political sensitivities of the United States as well as the host nation.  This will often present issues of sovereignty.  Of equal importance will be any issues addressing associated detention operations and intelligence exploitation.”

See “Legal Support to the Operational Army,” Field Manual (FM) 1-04, 26 January 2012.

The newly updated Army manual does not address the law of armed conflict.  That topic is treated in the much older, but still current, FM 27-10, “The Law of Land Warfare,” July 1956.

An overview of the military justice system, including the conduct of Army courts-martial, is provided in “Legal Guide for Commanders,” FM 27-1, January 1992.

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

China’s Banking System: Issues for Congress, February 20, 2012

Rising Gasoline Prices 2012, March 1, 2012

Gun Control Legislation, March 2, 2012

Budget Process Reform: Proposals and Legislative Actions in 2012, March 2, 2012

Iran: U.S. Concerns and Policy Responses, March 2, 2012

In an opinion published this week, DC District Judge Richard W. Roberts did an astonishing thing that federal courts almost never do:  He probed into the decision to classify a government document and concluded that it was not well-founded.  He ordered the agency to release the document under the Freedom of Information Act.

The Center for International Environmental Law had sued the Office of the U.S. Trade Representative (USTR) to obtain a one-page position paper concerning the U.S. negotiating position in free trade negotiations.  The USTR denied the document, which it said was classified, on grounds that the parties to the negotiation had agreed that their records would not be disclosed prior to the end of 2013.

The USTR contended that release of the document would engender a loss of confidence among U.S. negotiating partners and weaken the position of the U.S. in future negotiations.  It was classified “Confidential” because its disclosure could reasonably be expected to cause harm to U.S. foreign relations, USTR said.

But Judge Roberts rejected this line of argument, particularly since the document in question was a U.S. Government record, not foreign government information that had been provided in confidence.

“There is… a meaningful difference between the United States’ disclosure of information that it receives in confidence from a foreign government, with the foreign government’s understanding that the information will be kept secret, and the United States’ disclosure of a document that it itself created and provided to others,” he wrote.

“USTR… fails to provide a plausible or logical explanation of why disclosure of Document 1 reasonably could be expected to damage United States’ foreign relations,” Judge Roberts concluded.  Therefore, he ruled that it could not be withheld.

In the context of FOIA litigation, this is an extraordinary opinion.

Ordinarily, courts defer to executive branch agencies on questions of national security classification.  It’s true that FOIA requires that information must be “properly” classified in order to be exempt from disclosure.  But the term “properly” has usually been interpreted to mean procedurally proper, not substantively proper.  In other words, courts ask if the classifier was authorized to classify and if other classification rules were correctly followed.  But unlike Judge Roberts, they do not normally ask whether the classification decision makes any sense.

Once the question of the merit of the document’s classification was permitted, the USTR postion could not be sustained.

Interestingly, the court did not specifically say that the document must be declassified.  Classification policy is not the court’s concern, particularly since it is not based in statute.  Rather, Judge Roberts simply ordered that the government must provide a copy of the document to the requester — whether it is classified or not.

The ruling is a rebuke not only to the USTR, which classified the document, but also to the Department of Justice, which chose to defend the case in court.  According to 2009 FOIA Guidelines issued by Attorney General Holder, the Department of Justice is only supposed to defend agency FOIA denials when disclosure would cause reasonably foreseeable harm or is prohibited by law.  In practice, however, there is no known case in which those Guidelines have led the Department to decline to defend a FOIA denial.

The new decision was first reported by Josh Gerstein of Politico in “Judge issues rare order to disclose classified document,” February 29.

Federal courts could do far more to curb unwarranted secrecy than they usually do, argued Meredith Fuchs, then-general counsel of the National Security Archive, in a 2006 law review article.  See “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,” Administrative Law Review, Winter 2006.

In response to a congressional directive, the Department of Defense Inspector General has provided to Congress “an inventory of all identified unauthorized disclosures of SCI [sensitive compartmented information, or classified intelligence] to the public within DoD from the past three calendar years.”  The classified IG report also described the actions taken by DoD in response to the leaks, including referrals to the Department of Justice for criminal investigation.

An unclassified version of the IG report, stripped of almost all of its content, was released yesterday.  See “Report on Sensitive Compartmented Information Leaks in the Department of Defense,” DoD Inspector General Report No. 2012-056, February 27, 2012

“We confirmed with DoD components that some unauthorized disclosures of SCI to the public did occur within DoD between December 23, 2008 and December 23, 2011. Among the unauthorized SCI disclosures to the public reported, a DoD Senior Official was directly attributed as a source of unauthorized SCI disclosures to the public,” the unclassified IG report stated. The DoD Senior Official was not identified in the published report.

The IG report includes previously undisclosed congressional language from the classified annex to the FY2012 House Defense Appropriations Bill:

“The Committee is appalled with the number of leaked classified and compartmented facts and reports that have occurred over the past three calendar years.  The sources and methods used for clandestine and covert activities are some of the most closely guarded secrets in the Department of Defense and intelligence community and the fact that these details are being exposed on a regular basis by ‘senior administration officials’ is of grave concern. These sources and methods are the life-blood of intelligence and will not be maintained or cultivated in the future if they continue to be exposed….  The Committee believes that these leaks are unacceptable, need to be investigated, and stopped.”

Among other things, the DoD IG response illustrates the fact that agency Inspectors General have the capacity to conduct detailed and exacting oversight of classification policy when they are assigned to do so.  See “DoD Inspector General Takes on Classification Oversight,” Secrecy News, February 8, 2012.

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

North Korea’s Nuclear Weapons: Technical Issues, February 29, 2012

Afghanistan Casualties: Military Forces and Civilians, February 29, 2012

The Eurozone Crisis: Overview and Issues for Congress, February 29, 2012

Sovereign Debt in Advanced Economies: Overview and Issues for Congress, February 29, 2012

Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2012, February 29, 2012

Military Construction: A Snapshot of the President’s FY2013 Appropriations Request, February 28, 2012

“There is no ‘reporter’s privilege’ that shields the identity of confidential sources in good-faith criminal proceedings,” prosecutors reiterated in a new pre-trial brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author and New York Times reporter James Risen.  Consequently, they said, Mr. Risen should not be permitted to invoke such a privilege to shield his source.

“Risen and his amici simply do not accept that Branzburg [the 1972 Supreme Court case that appeared to preclude a reporter’s privilege in criminal cases] is the law,” prosecutors told the Fourth Circuit Appeals Court in their February 28 reply brief.  “Instead, they largely ignore the majority opinion in that case and rely on other sources to construct a constitutional or common law privilege.  Their arguments are not persuasive and should be rejected.”

“Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source,” prosecutors wrote.  “The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime.”  (Risen’s brief in support of upholding a reporter’s privilege is here; an amicus brief filed by news media organizations is here.)

In a February 14 defense pleading that was redacted and unsealed this week, the Sterling defense team wrote that “Mr. Sterling takes no position on whether a ‘reporter’s privilege’ exists and, if so, whether Mr. Risen would have been entitled to invoke the privilege at trial.”

But the defense added that the urgency of the prosecution’s demand for Mr. Risen’s testimony “serves to highlight the evidentiary gaps in its case against Mr. Sterling. Indeed, the Government concedes that without Mr. Risen’s testimony, it cannot even establish venue [i.e. where the alleged crime took place].”

“The Government proffers that Mr. Risen is ‘the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator.’ This statement merely summarizes the Government’s aspirations as to what Mr. Risen might say. The Court must be careful to avoid believing that there is any basis in the record for this or the many other statements or claims the Government attributes to Mr. Risen and testimony that has never been provided.”

In short, the defense response said, “while Mr. Sterling takes no position on the privilege or First Amendment issues posed by this case, the record is clear that the Government is speculating about Mr. Risen’s anticipated testimony in a vain attempt to fill a gaping evidentiary void that has existed throughout its investigation and attempted prosecution of its case against Mr. Sterling.”

Both parties also disputed the other issues on appeal, including whether two government witnesses were properly struck by the trial court, and whether the identities of two covert witnesses should be revealed to the defense and the jury at trial, as the lower court ordered.

Oral argument before the Fourth Circuit Court of Appeals is tentatively scheduled for mid-May.

A recently updated U.S. Army doctrinal manual on recovery of U.S. military personnel who are captured by enemy forces — which is considered “one of the highest priorities of the United States Government” — includes a new section on the recovery of journalists who have been kidnapped or detained abroad.

“International journalists risk jail, kidnapping, or death in the course of their profession, particularly in areas of conflict,” the manual observes. “The danger is not just to the journalists themselves, but also to their staffs and families. The dangers and the risk of isolation become acute in areas with persistent conflict, such as parts of Latin America and Asia. As joint and Army forces conduct global operations, they encounter members of the news media.”

“While not responsible for the protection and security for any except those embedded with military units and organizations, in some situations Army forces conduct operations to recover journalists designated by U.S. authorities. Recovery of journalists provides challenges for joint and Army forces.”

“Journalists often have little training in survival, evasion, resistance, and escape techniques. Even those working for large media conglomerates may have had limited training, such as briefings or informal orientations on how to avoid being a target. Their organizations may learn of their capture only when the hostage-takers issue a ransom demand. Some news organizations employ private security details, but  it is common for hostage-takers to simply overpower the security force and take the journalist, usually with dire consequences for locally hired staff.”

“Occasionally a journalist or media organization will collaborate with U.S. forces for protection. This is never more than an arrangement of personal security. Sections 403 to 407 of Title 50, USC, prohibit anyone with United States or foreign press credentials from formally collecting information or intelligence for U.S. forces. This same section does permit voluntary cooperation if the individual journalists realize that they are providing information to a U.S. intelligence entity. Journalists are never a part of the military forces, but they can be part of the information network. Journalists generally understand the local situation and can volunteer information, including information on their colleagues who are isolated or held hostage.”

“Army forces sometimes allow news media representatives to embed, from field Army to platoon level. […] By definition, embedded journalists become a part of the Army units to which temporarily assigned. They are therefore under the force protection umbrella, including personnel recovery.”  See “Army Personnel Recovery,” Field Manual 3-50.1, November 2011 (sections 4-52 to 4-58).

The previous edition of FM 3-50.1, dated August 2005, did not address the recovery of captured journalists.

New or updated reports from the Congressional Research Service include the following.

The Depreciating Dollar:  Economic Effects and Policy Response, February 23, 2012

Monetary Policy and the Federal Reserve: Current Policy and Conditions, January 30, 2012

Evaluating the Current Stance of Monetary Policy Using a Taylor Rule, January 30, 2012

Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data, February 16, 2012

Taiwan: Major U.S. Arms Sales Since 1990, February 24, 2012

Changes in the Arctic: Background and Issues for Congress, February 27, 2012

Energy Projects on Federal Lands:  Leasing and Authorization, February 1, 2012

Financial Performance of the Major Oil Companies, 2007-2011, February 17, 2012

The Department of Defense has published its long-awaited new information security regulation that finally brings the Department into conformity with the Obama Administration’s 2009 executive order on national security classification policy.

The new regulation, published in four volumes as DoD Manual 5200.01 and dated 24 February 2012, replaces Information Security Regulation 5200.1-R, which dates from 1997.

DoD is by far the largest and most prolific generator of classified information in the government.  So every shift in DoD information policy (as well as every failure to shift) has significant ramifications for the secrecy system as a whole.

The new regulation generally follows the classification guidelines set by the Obama executive order but it also elaborates on them in interesting ways.  It presents comprehensive guidance on practically every aspect of classification and declassification policy, including an extended discussion of how to respond to unauthorized disclosures of classified information (in volume 3, Enclosure 6).

Other notable provisions in the first volume of the new regulation include the following.

“If holders of information have substantial reason to believe that the information is improperly or unnecessarily classified, they shall communicate that belief to their security manager or the OCA [original classification authority] to bring about any necessary correction….  The Heads of the DoD Components shall ensure that no retribution is taken against any individual for questioning a classification or making a formal challenge to a classification.” (Vol. 1, p. 49)

Each DoD component is required to establish a self-inspection program, which “shall include regular review and assessment of representative samples of the DoD Component’s classified products. Appropriate officials shall be authorized to correct misclassification of information.” (p. 13)

The Assistant Secretary of Defense (NII) shall “Direct the use of technical means to prevent unauthorized copying of classified data and for anomaly detection to recognize unusual patterns of accessing, handling, downloading, and removal of digital classified information.” (p. 12)

“DoD military and civilian personnel may be subject to criminal or administrative sanctions if they knowingly, willfully, or negligently:
(a) Disclose to unauthorized persons information properly classified in accordance with this Volume.
(b) Classify or continue the classification of information in violation of this Volume.
(c) Create or continue a SAP [special access program] contrary to the requirements of… this Volume….”  (p.32)

The Fundamental Classification Guidance Review, which was mandated by the executive order to eliminate obsolete classification instructions, shall encompass “a broad range of perspectives,” the new regulation states. The involvement of outside experts is essential, the regulation seems to recognize, in order to compensate for self-interest, prejudice, and habitual patterns of thought.  “Contributions of subject matter experts with sufficient expertise in narrow specializations must be balanced by the participation of managers and planners who have broader organizational vision and relationships. Additionally, to the extent practicable, input should also be obtained from external subject matter experts and external users of the classification guidance.”  (p. 73)

The new regulation is effective immediately.

A February 16 report from DoD on the Fundamental Classification Guidance Review indicated that of the 1069 security classification guides that had been reviewed by the end of December 2011, no fewer than 318 guides had been scheduled for retirement or cancellation.  (“DoD Reports ‘Impressive Strides’ in Updating Classification,” Secrecy News, February 22.)