Stewart Nozette, a space scientist who was deeply involved in many of the nation’s most highly classified technology programs, pleaded guilty to attempted espionage for providing classified information to an undercover FBI agent posing as an Israeli intelligence officer.

According to a “factual proffer” (pdf) presented by the government in court yesterday, “The defendant [Nozette] initially claimed to be wary of providing any classified information to the UCE [Under Cover Employee of the FBI].” But with continued encouragement, “the defendant’s purported concerns were soon assuaged,” the proffer document stated, and he proceeded to exchange classified information for cash.

Nozette, who was privy to dozens of special access programs and compartmented intelligence programs, was also an innovative technologist with an impressive record of achievement.  One of the many unsettling features of his story is that in the past, when I knew him slightly, he was not motivated primarily by a desire for money nor was he oblivious to security.  How and why he changed has not been explained.  See, relatedly, “Nozette and Nuclear Rocketry,” Secrecy News, October 22, 2009.

The House Intelligence Committee issued its report on the FY2012 intelligence authorization act on September 2, and the bill is expected to go to the House floor on September 9.

The White House issued a veto threat against the bill yesterday based on its opposition to two provisions:  a requirement to produce State Department cables relating to Guantanamo detainees, and a requirement that the Director of the National Security Agency be confirmed by the Senate.

Somewhat oddly, those provisions, which originated in the Senate version of the bill, did not appear in the version reported by the House Intelligence Committee.  Rather, they were included in a “pre-conferenced” version of the bill (pdf) that was intended to expedite handling of the bill by incorporating some Senate provisions and which was provided to the House Rules Committee.  But Intelligence Committee chair Rep. Mike Rogers told the Rules Committee yesterday that he would offer a manager’s amendment on the House floor to remove the provisions that are opposed by the White House, mitigating or eliminating the veto threat.

The most significant features of the pending intelligence bill are contained in a classified annex that is not publicly available.  Among its less significant features, the unclassified bill would require the CIA to prepare a classified official report on the killing of Osama bin Laden (as first reported by Tony Capaccio of Bloomberg News).

“For years to come, Americans will look back at this event as a defining point in the history of the United States,” the House Committee believes, referring to the bin Laden killing.  “It is vitally important that the United States memorialize all the events that led to the raid so that future generations will have an official record of the events that transpired before, during, and as a result of the operation,” the Committee report said.

The House bill would also specify that the Department of Homeland Security’s Office of Intelligence and Analysis, rather than the Department of Homeland Security as a whole, is a member of the U.S. Intelligence Community.

Coincidentally, in an investigation published this week the Center for Investigative Reporting found that the DHS Office of Intelligence and Analysis “has fallen far short of its mission and done little to improve the accuracy and quality of the nation’s intelligence data.”  See “Homeland security office creates ‘intelligence spam,’ insiders claim” by Andrew Becker and G.W. Schulz, America’s War Within, September 5.

The House Intelligence Committee report is silent regarding the Office’s performance.

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is suspected of leaking classified information to author and New York Times reporter James Risen, last week renewed their request (pdf) for a subpoena to compel Risen to testify at Sterling’s upcoming trial.

A July 29 court order, issued by Judge Leonie M. Brinkema, had sharply limited the scope of Risen’s testimony, essentially requiring him only to authenticate his authorship of a book containing classified information concerning Iran’s nuclear program, and to attest to the accuracy of its contents.

Prosecutors said they need much more than that from Mr. Risen, and they filed a Motion for Reconsideration on August 24.

Then on September 2 they filed a Supplement arguing that further developments “have strengthened the government’s argument that it has a compelling interest in Mr. Risen’s eyewitness testimony because it is necessary or critical to the case, and because there are no alternative means from which the government can obtain the same evidence.”

First, they said that in the absence of Mr. Risen’s definitive testimony the defense planned to allege that multiple other individuals were or might have been the source of the leak. “As a result, the government will be forced to prove a negative, over and over again, that each of these individuals was not the leaker.”

In particular, prosecutors said, “the defendant is using the Court’s decision to shield Mr. Risen from testifying as a sword to falsely attack the character and reputation of congressional staffers, most prominently Ms. Vicki Divoll,” a former Senate Intelligence Committee staffer.

In an August 2 motion (pdf), the Sterling defense had alleged that Ms. Divoll’s Senate employment had been terminated because she breached Committee confidentiality rules.  “This is a false charge — and the defendant knows that it is false,” prosecutors said.  They cited a statement from an Intelligence Committee legal representative who indicated that “Ms. Divoll’s personnel file did not reflect a charge of disclosing classified information to anyone.”

Prosecutors also said that another argument by the Sterling defense about Mr. Risen’s writing style — a claim that no inferences about his sources can be drawn even when particular statements are attributed to named individuals — supports their request for a subpoena.

Specifically, the defense has provided notice (pdf) that University of Maryland Professor Mark Feldstein may be called to testify that Risen’s book “is written in the third-person omniscient, a narrative style in which the reader is presented the story by a narrator with an overarching perspective…. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular ‘characters’, whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed.”  This style is exemplified by books authored by Bob Woodward, the defense notice said.

This kind of argument “further underscores why the government has a compelling interest in requiring Mr. Risen to testify,” prosecutors wrote.

In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.”  As a result, prosecutors said, Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”

In other developments in the case, Judge Leonie Brinkema issued an August 30 order (pdf) with several rulings favorable to the prosecution.  She denied a defense motion for discovery of classified intelligence estimates on Iran’s nuclear program.  She rejected defense arguments that the Classified Information Procedures Act does not permit the government to introduce substitutions for classified evidence.  And she granted a prosecution request that certain intelligence assets be permitted to testify behind a screen so that their identities are not made public.

The previously undisclosed subject matter of a leak of classified information by former FBI linguist Shamai Leibowitz concerned transcripts of FBI wiretaps of Israeli efforts to monitor and influence U.S. policy, Scott Shane revealed in the New York Times today.  See “Leak Offers Look at Efforts by U.S. to Spy on Israel.”  Mr. Leibowitz pleaded guilty to the unauthorized disclosures, which were provided to blogger Richard Silverstein.  Leibowitz was sentenced to jail in May 2010.

The latest annual report on secrecy (pdf) from the pro-transparency coalition Openthegovernment.org finds some positive signs of increasing openness amidst a continuing expansion of secret government.

“We are not as yet at the level of ‘unprecedented transparency’ the Obama Administration promises, but we are beginning to see signs that at least some of the Administration’s openness efforts are paying off,” said Patrice McDermott, coalition director and co-author of the annual report with Amy Bennett and Abby Paulson.

For example, the report noted that Freedom of Information Act (FOIA) backlogs government-wide were reduced by 10% in Fiscal Year 2010 compared to FY 2009.

The new annual report conveniently gathers all or most of the available quantitative measures of secrecy.  By doing so, however, it also highlights the inadequacy of such data.

Some of the measures are ambiguous, as in the observation that the number of “signing statements” issued by President Obama to challenge the legitimacy of newly enacted legislation is lower than that of other recent presidents.  The report praises this reduction.  But signing statements that publicly declare Administration non-compliance with legislation can easily be understood as signs of “openness,” even if they are unwelcome, since they explicitly signal executive branch attitudes and actions.

Many other measures of secrecy, including the volume of classification activity, convey almost no meaningful information.  They are vaguely descriptive of the constant churning of the classification system, but they fail to provide any basis for evaluation.  Is there too much secrecy?  too little?  just the right amount?  Anyone may have an opinion, but the quantitative data on secrecy gathered by the government provide no basis for reaching a firm judgment.  The data simply lack any kind of Figure of Merit that would allow one to distinguish legitimate national security secrecy from its spurious kin.  The failure to generate and provide meaningful metrics of secrecy is a serious impediment not only to public accountability, but also to proper management of the classification system.

Most people can vaguely recall that there was once no U.S. Department of Homeland Security and that there was a time when you didn’t have to take your shoes off before boarding an airplane or submit to other dubious security practices.

But hardly anyone truly comprehends the enormous expansion of the military, intelligence and homeland security bureaucracy that has occurred over the past decade, and the often irrational transformation of American life that has accompanied it.

The great virtue of the new book “Top Secret America” by Dana Priest and William M. Arkin (Little Brown, September 2011) is that it illuminates various facets of our secret government, lifting them from the periphery of awareness to full, sustained attention.

Top Secret America, which builds on the series of stories the authors produced for the Washington Post in July 2010, delineates the contours of “the  new American security state.”  Since 9/11, for example, some 33 large office complexes for top secret intelligence work have been completed in the Washington DC area, the equivalent in size of nearly three Pentagons.  More than 250,000 contractors are working on top secret programs.  A bewildering number of agencies – more than a thousand — have been created to execute security policy, including at least 24 new organizations last year alone.  And so on.

But the vast scale of this activity says nothing about its quality or utility.  The authors, who are scrupulous in their presentation of the facts, are critical in their evaluation:

“One of the greatest secrets of Top Secret America is its disturbing dysfunction.”

“Ten years after the attacks of 9/11, more secret projects, more secret organizations, more secret authorities, more secret decision making, more watchlists, and more databases are not the answer to every problem.  In fact, more has become too much.”

“It is time to close the decade-long chapter of fear, to confront the colossal sum of money that could have been saved or better spent, to remember what we are truly defending, and in doing so, to begin a new era of openness and better security against our enemies.”

(From this point of view, it was disappointing to hear the former chair of the 9/11 Commission, Gov. Tom Kean, declare yesterday that “we are not as secure as we could or should be.”  We need to accelerate along the path we have been following, Gov. Kean seemed to say, not to fundamentally change course.)

According to Priest and Arkin, “The government has still not engaged the American people in an honest conversation about terrorism and the appropriate U.S. response to it.  We hope our book will promote one.”

Despite the sobering subject matter, Top Secret America actually makes for lively reading.  It is full of the authors’ remarkable insights, anecdotes and encounters.  Dana Priest explored some of the physical geography of the classified world, taking elevators to unmarked floors in suburban office buildings and driving up to guard booths at secret facilities to innocently ask for information.  She accompanied police in Memphis while they conducted neighborhood surveillance with newfangled automatic license plate readers.  She was polygraphed at her request — and found to be a poor liar.  Bill Arkin, whose painstaking research informed the entire work (which is narrated by Priest), spent ten days in Qatar at the U.S. military facility that controls air operations in Iraq, Afghanistan and Pakistan, and somehow got himself invited to classified briefings.

One question that lurks throughout the book is whether the excesses and misjudgments that constitute so much of Top Secret America can be corrected or reversed.  The authors are not very optimistic, particularly since there are so many people who benefit from current arrangements, however wasteful, useless or pointless they might be.

By way of illustration they cite U.S. Northern Command, the newest military command that is nominally responsible for defense of North America but in practice is largely subordinate to other agencies and organizations.  “The fact that Northern Command would even continue to exist as a major, four-star-led, geographic military command, with virtually no responsibilities, no competencies, and no unique role to fill, demonstrated the resiliency of institutions created in the wake of 9/11 and just how difficult it would be to ever actually shrink Top Secret America,” they wrote.

Secrecy is naturally a persistent theme throughout the book.  As is often the case in national security reporting, the authors relied on unauthorized disclosures to complement their own research and reporting. And in this case, such disclosures served as a particularly effective antidote to overclassification.

“Most of those who helped us did so with the knowledge that they were breaking some internal agency rule in doing so;  they proceeded anyway because they wanted us to have a more complete picture of the inner workings of the post-9/11 world we sought to describe and because they, too, believe too much information is classified for no good reason,” they wrote.

At the same time, the authors noted that they “have left out some information” based on national security considerations.

Top Secret America will be featured on PBS Frontline on September 6, the book’s official release date.

Last month Sandia National Laboratories published an unlikely account of the thought of C.S. Peirce (1839-1914), the American pragmatist philosopher.  See “Peirce, Pragmatism, and the Right Way of Thinking” (pdf) by Philip L. Campbell of the Sandia Networked Systems Survivability and Assurance Department, Sandia Report SAND2011-5583, August 2011.

What is the connection between Peirce’s philosophy and the national security mission of Sandia, or of the Department of Energy’s National Nuclear Security Administration, which sponsored the paper?  The author did not reply to an email inquiry from Secrecy News on that point yesterday.  But the paper states that “In practical terms, we can use Peirce’s lectures to build a model of how we make decisions.” (p. 12)

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author James Risen, have asked a federal court to reconsider (pdf) the July 29 ruling that narrowly limited Risen’s obligation to testify at the trial of Mr. Sterling. (“Reporter Risen Will Not Have to Identify Source in Leak Trial,” Secrecy News, August 1.)

“There is no equivalent for Risen’s eyewitness testimony,” prosecutors wrote in an August 24 motion for reconsideration, arguing that Risen’s participation was indispensable to the prosecution of Mr. Sterling. “There is no non-testimonial direct evidence in this case that can establish what Risen can.”

“There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same.  Had there been such recordings or emails, that evidence would have been disclosed… and the government certainly would have provided such discovery after indictment.  There simply is no such evidence,” the prosecution motion said.

The motion specifically asked the court to affirm that Mr. Risen must not only authenticate the reporting in his book, for which Mr. Sterling was allegedly a source, but that he must also authenticate the original book proposal that he submitted to his publisher, a point that was not addressed in the court’s July 29 ruling (pdf).

“Risen’s book proposal identified his sources as ‘CIA officers involved in the operation’…. In addition, the book proposal contains very specific, classified information that the defendant and very few others knew, thus tending to prove that the defendant was the source of the information,” the motion said.

More broadly, prosecutors wrote, “The government has a compelling interest in prosecuting government employees who leak classified, national defense information.  Tow of the most important duties of the Executive Branch are prosecuting violations of federal criminal laws and protecting the nation’s security secrets.  Thus, there are few scenarios where the government’s interests can be more profound and compelling than a criminal prosecution involving national security interests.”

The Department of Justice refused this month to declassify a 2001 legal Office of Legal Counsel opinion by John C. Yoo concerning the legality of the Bush Administration’s warrantless surveillance program.

The redacted information in the OLC opinion “is classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege,” wrote Paul P. Colborn, Special Counsel at OLC.

The document had been requested by researcher Matthew M. Aid, who writes on NSA and surveillance policy.

Eight partial sentences from the 21 page opinion were released, including a previously declassified assertion that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid such a reading.”

That claim alone has drawn criticism from some members of Congress.

“I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn’t say that,” Sen. Sheldon Whitehouse told the Washington Post in a May 23, 2008 story. “Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day.”

“The 2001 statement addressing FISA does not reflect the current analysis of the department,” wrote Justice official Brian A. Benczkowski, quoted in the Post.

A federal court yesterday rejected (pdf) multiple defense motions to dismiss Espionage Act charges against former State Department contractor Stephen Kim, who is accused of leaking classified information to a Fox News reporter.

Mr. Kim’s defense team had marshalled a series of seemingly ingenious arguments for dismissal.  The use of the Espionage Act to punish “political crimes” such as leaking is prohibited by the Constitution’s Treason Clause, one defense motion said.  Further, the language of the statute appears to prohibit unauthorized disclosure of tangible items, such as documents, not “information” which cannot be surrendered on demand.  Also, the defense argued, the Espionage Act is impermissibly vague and ambiguous with respect to oral disclosures.  Finally, prohibitions against leaks are enforced and prosecuted rarely and unpredictably, rendering those rare cases intrinsically unfair.

None of these arguments gained any traction with the court, though the defense discussion of the Treason Clause was deemed “compelling and eloquent.” Judge Colleen Kollar-Kotelly dismissed all of the defendant’s objections in a memorandum opinion on August 24.

“To the extent that Defendant intends to argue that the information he is charged with leaking was previously disclosed or was not properly classified, he may do so as part of his defense,” Judge Kollar-Kotelly wrote, “but such arguments do not render the statute vague” or otherwise invalid.

The new ruling probably does not come as a big surprise to any of the parties.  The surprise would have been if the court had overturned or reinterpreted the Espionage Act.  Instead, the ruling leaves the existing legal apparatus in place, and clears the path for trial.

The Kim case is one of five Espionage Act prosecutions undertaken by the Obama Administration due to alleged unauthorized disclosures of classified information.  A New York Times editorial today scolded the Administration for what it called the “misguided” use of the Act.

“With no allegation of a motive or intended harm to the US, the government’s use of Stephen as an example to deter the leaking of information is inappropriate,” according to a statement on Mr. Kim’s own web site.

On August 22 (“Some New Wrinkles in Nuclear Weapons Secrecy”), Secrecy News mistakenly wrote that the SILEX uranium enrichment process is “a unique case in which information that was privately generated was nevertheless classified by the government.  As far as could be determined, the decision to classify this non-governmental information under the Atomic Energy Act is the first and only time that such authority has been exercised.”  That was inaccurate.

Dr. Andrew Weston-Dawkes, the director of the Department of Energy Office of Classification, said that offhand he was aware of at least one other such case of classification of privately-generated information.  It involved “an AVLIS-like technology,” he said, referring to “atomic vapor laser isotope separation.”

Bryan Siebert, the former director of the DOE Office of Classification, said his recollection was that some of the laser fusion technology developed by the private company KMS Fusion in the early 1970s was also considered to be classified, “a long time before SILEX.”  An account of the KMS Fusion case —  which, he said, is “inaccurate in many ways” — is available from Wikipedia here.

Beyond that, said Dr. Weston-Dawkes, “there’s a long history of us going out to people [in the private sector] saying ‘you’re doing stuff’ [that needs to be reviewed for classification].”

He pointed to a 1972 public notice (pdf) issued by the Atomic Energy Commission.  It instructed “any person” working on isotope separation techniques to notify the Commission whenever a separation process has been demonstrated “so the Commission can give him appropriate classification and reporting guidance.”

There are many other instances in which individual authors have tangled with Department of Energy classification officials concerning the publication of information that DOE believed to be classified, such as Howard Morland’s article on the H-Bomb that was the subject of The Progressive case in 1979.  But those disputes involved previously generated and previously classified information, not qualitatively new inventions or developments.

The National Reconnaissance Office (NRO), which builds, launches and operates the nation’s intelligence satellites, has been unusually active over the past year.

“We are nearly through the most aggressive launch campaign in over 25 years,” said Betty J. Sapp, the NRO Principal Deputy Director, at a March 15, 2011 hearing of the House Armed Services Committee.  The record of that hearing was published (pdf) last month.

“We have successfully launched five satellites into orbit in the last six months, with one more launch planned next month,” she said in March.  “These successful launches have been a very important and visible reminder of the space reconnaissance mission NRO started 50 years ago, and continues with such great success today.”

The full record of the March 15 hearing provides an unclassified overview of national security space programs.  See “Budget Request for National Security Space Activities,” House Armed Services Committee.

Among other interesting points raised at the hearing, Gen. William L. Shelton of Air Force Space Command discussed the Air Force’s reliance on NOAA’s aging Advanced Composition Explorer (ACE) satellite to detect disruptive solar activity.

“Located at a stationary point approximately 1 million miles between the Earth and the Sun, it gives us 30-90 minutes warning before the detected solar disturbance reaches the Earth and our space assets,” Gen. Shelton said in response to a question for the record.  “This enables us to implement measures to protect our space systems and services.”

This year’s 50th anniversary of the NRO (established in 1961) will be accompanied by some new declassification activity.  “Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) will be declassified within a few months, said Douglas G. Richards of the Joint Staff at an August 23 forum sponsored by the National Declassification Center.

If the Obama Administration wants to advance the cause of open government, one particularly fruitful way to do so would be to share unclassified open source intelligence publications with the public.

The Federation of American Scientists offered that suggestion in response to a White House call for public input into the development of the pending Open Government Plan.

“The U.S. Government should adopt a policy of publishing all non-sensitive products generated by the Director of National Intelligence Open Source Center,” we wrote. “Doing so would serve to enrich the online domain with uniquely high-value content on a broad range of national security and foreign policy topics. It would foster increased public awareness and understanding of national security and foreign policy affairs. And it would provide the public with a tangible ‘return on investment’ in this vital area of national policy.”

The U.S. Open Government Plan is being developed as part of the multi-national Open Government Partnership that is to be launched next month.  The White House solicited public input to the process in an August 8 blog posting.