The battle for public access to open source intelligence may have been lost before most people even knew it began, judging from the new book, “No More Secrets: Open Source Information and the Reshaping of U.S. Intelligence” by Hamilton Bean (Praeger, 2011).

“No More Secrets” is an academic work, not an expose.  But it is an exceptionally stimulating one that brings the theoretical principles of organization management and communications theory to bear on intelligence policy in original and insightful ways.

As Bean shows in depth, the meaning of “open source” has been fiercely contested, beginning with the very definition of the term (which generally refers to policy-relevant information that can be acquired legally).  Other disputed questions include, Whom does open source serve?  Is it only for policy makers, or also the public?  Who should perform the open source mission?  Should it be housed within the intelligence community or outside of it?  Which aspect of “open source intelligence” dominates?  Is it the logic of openness or the logic of secrecy?

For the most part, these questions have now been answered, at least provisionally.  Open source intelligence is for policymakers, not the public.  It is part of the intelligence community, not separate from it.  The logic of secrecy, not openness, is primary.  “Intelligence officials have successfully marginalized” those who would argue differently, Bean says.

Among several fateful turning points in the current institutionalization of open source intelligence, Bean highlights a conflict between Robert Steele, a former CIA officer and Marine Corps open source advocate, and Eliot Jardines, who served as the senior ODNI official on open source.

While Steele favored an open, expansive and inclusive vision of open source intelligence, “Jardines sought to institutionalize the collection and analysis of open source within the U.S. intelligence community in ways that did not overtly challenge the dominant institutional logic of secrecy.”  In 2005 or thereabouts, Jardines won that battle, and “those who share Steele’s vision of an independent open source agency find their ability to affect change similarly constrained,” the author says.  (Steele’s own review of the book is here.)

Of course, there is no reason why the status quo must be perpetuated indefinitely.  In fact, Prof. Bean notes, “many stakeholders… are still, to this day, actively struggling to institutionalize their preferred meanings of open source….”

Secrecy News is cited a couple of times in the book and the Federation of American Scientists makes an appearance in this peculiar sentence:  “A principal reason that WikiLeaks, Public Intelligence, Cryptome, and FAS are controversial is because they threaten to rupture distinctions between open and secret information and destabilize conventional notions of authority, expertise and control.”

New and updated reports on China and Taiwan from the Congressional Research Service include the following (all pdf).

China-U.S. Trade Issues, August 10, 2011

U.S.-Taiwan Relationship: Overview of Policy Issues, August 4, 2011

China’s Currency: A Summary of the Economic Issues, August 3, 2011

Taiwan: Major U.S. Arms Sales Since 1990, August 2, 2011

U.S.-China Military Contacts: Issues for Congress, July 26, 2011

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, July 22, 2011

Human Rights in China and U.S. Policy, July 18, 2011

A newly released intelligence guide to document classification markings explains the meaning and proper use of control markings to designate classified information.  See “Authorized Classification and Control Markings Register” (pdf), CAPCO, Volume 4, Edition 2, May 31, 2011.  (See also the associated Implementation Manual of the same date.)

This material is very detailed, comprehensive and quite informative, with only a few redacted passages pertaining to some code word usages.

But though it is only three months old, it is already out of date due to the constant churning within the classification system that regularly generates new marking requirements and cancels old, familiar ones.  This has been particularly true lately with respect to changes in markings for “Restricted Data,” or classified nuclear weapons information.

Thus, the intelligence guide to classification marking refers to the so-called “Sigma” system for marking Restricted Data.  Each Sigma level refers to a particular aspect of nuclear weapons design.  According to the intelligence community guide, the Sigma system extends from Sigma 1 to Sigma 15 and also Sigma 20.  But that is no longer accurate.

In a July 2011 order (pdf), the Department of Energy determined that Sigma levels 1 through 5 and 9 through 13 are now obsolete.  So they have been disestablished.  Meanwhile, a new Sigma category, Sigma 18, has been created to address “Control of Complete Designs” and to protect “past and present U.S. nuclear weapons, nuclear devices and weapon designs.”  See “Control of Nuclear Weapon Data,” DoE Order 452.8, July 21, 2011.

At this late date in the nuclear era, there are still other “innovations” in nuclear technology and nuclear secrecy.  The New York Times reported last weekend on an apparent breakthrough in the use of lasers to enrich uranium.  This laser enrichment process, known as SILEX (Separation of Isotopes by Laser Excitation), also poses new proliferation issues.  See “Laser Advances in Nuclear Fuel Stir Terror Fear” by William J. Broad, August 21.

Though the Times story did not mention it, the SILEX process is also 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.  [Update, August 25: This is not correct. See A Correction on Nuclear Secrecy.] See this 2001 “Record of Decision to Classify Certain Elements of the SILEX Process as Privately Generated Restricted Data.”  (See also “A Glimpse of the SILEX Uranium Enrichment Process,” Secrecy News, August 22, 2007.)

For its part, the Department of Defense issued a new Instruction last week on “Disclosure of Atomic Information to Foreign Governments and Regional Defense Organizations” (DoDI 5030.14, August 17, 2011).

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, should not be permitted to present their evidence at trial in modified or redacted form and should also not be able to employ other extraordinary security measures, defense attorneys argued in an August 19 pleading (pdf).

Specifically, the defense team said that prosecutors should not be allowed to use the provisions of the Classified Information Procedures Act (CIPA) to introduce unclassified substitutions for classified evidence that they wish to present.

The purpose of CIPA, the defense said, is to allow the defendant to present exculpatory classified evidence in an unclassified form while preventing “graymail,” i.e. the threat to disclose classified information as a tactic for evading prosecution.

But CIPA does not entitle prosecutors to introduce their own classified evidence in redacted form, the defense argued, particularly since “the Government… cannot ‘graymail’ itself.”  Instead, the prosecution “must either declassify information it wishes to use in its case-in-chief or forego using that information.”

“What CIPA does not provide is the ability of the Government to prosecute a defendant using substitute or redacted evidence against him in its case-in-chief,” the defense said.

The Sterling defense also objected to the prosecutors’ proposed use of the “silent witness” rule, by which classified information is shared with the jury but not disclosed in open court.

The silent witness rule is fundamentally unfair, is not authorized by law, is possibly unconstitutional, and should not be approved by the court, the defense said.  (The proposal to invoke the silent witness rule was first reported by Josh Gerstein in Politico on August 10.)

“It will be impossible effectively to contest and challenge the Government’s evidence before a jury if the Court permits use of the silent witness rule, which would impermissibly provide the stamp of secrecy and national security importance to information that the Government has elected to disclose in a criminal trial where those very issues are contested.  The Court must decline this invitation to conduct an unfair and constitutionally impermissible trial,” the defense said.

For similar reasons, the defense also objected to the proposed use of security measures such as initials and screens to conceal the identities of government witnesses.

“The Department of Justice, surely after consultations with the CIA, approved this prosecution,” the defense pleading said.  “In doing so, it should have expected an open and public trial that featured all of the Constitutional protections afforded a defendant in the United States.”

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“The European Union: Foreign and Security Policy,” August 15, 2011

“Standard & Poor’s Downgrade of U.S. Government Long-Term Debt,” August 9, 2011

“The Obama Administration’s Cybersecurity Proposal: Criminal Provisions,” July 29, 2011

There can be such a thing as too much security, the Navy said in a new Instruction on “Operations Security” (pdf) or OPSEC.

OPSEC refers to the control of unclassified indicators that an adversary could use to derive “critical information” (CI) concerning military or intelligence programs.

“Properly applied, OPSEC contributes directly to operational effectiveness by withholding CI from an adversary, thereby forcing an adversary’s decisions to be based on information friendly forces choose to release,” the new Navy Instruction said. “Inadequate OPSEC planning or poor execution degrades operational effectiveness by hindering the achievement of surprise.”

But even if adequately planned and executed, not all OPSEC is necessary or useful;  sometimes it is actually counterproductive.

“Excessive OPSEC countermeasures… can degrade operational effectiveness by interfering with the required activities such as coordination, training and logistical support,” the Instruction said.  See “Operations Security,” OPNAV Instruction 3432.1A, 4 August 2011.

Unfortunately, the Instruction does not and perhaps cannot provide criteria for distinguishing between proper OPSEC and excessive OPSEC.  Instead, it directs commanders and program managers to “evaluate” each operation and draw the appropriate conclusions.  What if the program manager is shortsighted or simply makes a mistake?  What if OPSEC is justified from a security perspective, but also undermines government accountability or public confidence in government integrity?  The Instruction has nothing to say about that.

Because of the subjective element in such decisions, the use of OPSEC (like the application of national security classification controls) is often arbitrary and disputed.

After 30 U.S. servicemen, including 17 Navy SEALs, were killed in Afghanistan on August 6 when their helicopter was shot down, U.S. Special Operations Command asked that the names of the SEALs not be disclosed for security reasons.  Secretary of Defense Leon Panetta rejected that view and the names were released by the Pentagon yesterday.

But in a questionable nod to OPSEC, the name of the unit to which the SEALs were attached — the Naval Special Warfare Development Group (DEVGRU) — was not cited by the Pentagon, Bloomberg News reported.  Instead, the DoD press release referred only to “an East Coast-based Naval Special Warfare unit.”  Yet the Navy itself has previously acknowledged and referred by name to the same SEAL unit.  See “Pentagon Releases Identities of SEALs Killed, Not Unit Name” by Tony Capaccio, Bloomberg News, August 11.

While information sharing among government agencies has increased dramatically over the past decade, it still falls short in some areas.

Due to “impediments to intelligence information sharing between U.S. forces and coalition partners,” information sharing with U.S. allies in Afghanistan has faltered to the detriment of the military mission, the Inspector General of the Department of Defense said in a mostly classified report last month.

Continuing impediments have “resulted in information not being tactically useful by the time it is authorized for release,” the Inspector General said.  See “Results in Brief: Improvements Needed in Sharing Tactical Intelligence with the International Security Assistance Force Afghanistan,” excerpted from DoD Inspector General Report 11-INTEL-13, July 18, 2011.

The 2011 Annual Report on the DNI Information Sharing Environment (pdf) said that “steady progress has been made” in information sharing, especially with respect to homeland security and law enforcement.

Among other things, the Report noted that the intelligence community intranet called Intelink “recently crossed the 100 million document threshold for records exposed to Intelink search services…. In one month alone this year, Intelink recorded over two million searches.”  Such datapoints “highlight the ability of IC personnel to acess more information quicker and more effectively, enabling them to better share information and thus perform their missions,” the Report said.

Another recent report from the Government Accountability Office said the Information Sharing Environment still had not identified its desired “end state.”  Six years after it was created, “there is not a clear definition of what the ISE is intended to achieve and include.”  See “Information Sharing Environment: Better Road Map Needed to Guide Implementation and Investments” (pdf), Government Accountability Office report GAO-11-455, July 2011.

It should be understood that “information sharing” is quite different from “information disclosure,” and the two practices are usually at odds.  In fact, the prerequisite for most so-called information sharing is an official assurance that the information to be shared will not be disclosed to unauthorized persons such as members of the general public.

The Obama Administration is putting the finishing touches on a new executive order that is intended to improve the security of classified information in government computer networks as part of the government’s response to WikiLeaks.

The order is supposed to reduce the feasibility and the likelihood of the sort of unauthorized releases of classified U.S. government information that have been published by WikiLeaks in the past year.

According to an official who has reviewed recent drafts, the order addresses gaps in policy for information systems security, including characterization and detection of the insider threat to information security.  It does not define new security standards, nor does it impose the security practices of intelligence agencies on other agencies.  (“It doesn’t say, ‘go polygraph everybody’,” the official said.)

Rather, the order establishes new mechanisms for “governance” and continuing development of security policies for information systems.  Among other things, it builds upon the framework established — but not fully implemented — by the 1990 National Security Directive 42 (pdf), the official said.

The order, developed on a relatively fast track over the past nine months, has already gone through two rounds of interagency coordination and is expected to be issued within a matter of weeks.

Even the most highly classified offensive cyberwar capabilities that are acquired by the Air Force for use against enemy computer systems will be subject to “a thorough and accurate legal review,” the U.S. Air Force said in a new policy directive (pdf).

The directive assigns the Judge Advocate General to “ensure all cyber capabilities being developed, bought, built, modified or otherwise acquired by the Air Force that are not within a Special Access Program are reviewed for legality under LOAC [Law of Armed Conflict], domestic law and international law prior to their acquisition for use in a conflict or other military operation.”

In the case of cyber weapons developed in tightly secured Special Access Programs, the review is to be performed by the Air Force General Counsel, the directive said.  See “Legal Reviews of Weapons and Cyber Capabilities,” Air Force Instruction 51-402, 27 July 2011.

The Air Force directive is somewhat more candid than most other official publications on the subject of offensive cyber warfare.

Thus, “for the purposes of this Instruction, an Air Force cyber capability requiring a legal review prior to employment is any device or software payload intended to disrupt, deny, degrade, negate, impair or destroy adversarial computer systems, data, activities or capabilities.”

On the other hand, cyber capabilities requiring legal review “do not include a device or software that is solely intended to provide access to an adversarial computer system for data exploitation,” the directive said.

One challenge facing such legal reviews is that law and policy in the relatively new field of cyberwar are not fully articulated.  Another challenge is that where applicable law and policy do exist, they may be inconsistent with the use of offensive cyber tools.

In response to a question (pdf) on cyberwarfare from the Senate Armed Services Committee at his confirmation hearing last year, Lt. Gen. Keith Alexander of U.S. Cyber Command said: “President Obama’s cybersecurity sixty-day study highlighted the mismatch between our technical capabilities to conduct operations and the governing laws and policies, and our civilian leadership is working hard to resolve the mismatch.” (page 9)

But he added: “Given current operations, there are sufficient law, policy, and authorities to govern DOD cyberspace operations. If confirmed, I will operate within applicable laws, policies, and authorities. I will also identify any gaps in doctrine, policy and law that may prevent national objectives from being fully realized or executed to the Commander, U.S. Strategic Command and the Secretary of Defense.”

Asked whether DoD possesses “significant capabilities to conduct military operations in cyberspace,” Gen. Alexander would only provide an answer on a classified basis.

The Pentagon does not often acknowledge the existence of offensive cyber capabilities.  The “Department of Defense Strategy for Operating in Cyberspace” (pdf) that was released in unclassified form last month does not address offensive cyber warfare at all.

New reports from the Congressional Research Service on topics of economic policy include the following (all pdf).

“Boosting U.S. Exports: Selected Issues for Congress,” July 21, 2011

“Economic Recovery: Sustaining U.S. Economic Growth in a Post-Crisis Economy,” July 18, 2011

“Inflation: Causes, Costs, and Current Status,” July 26, 2011

“Treasury Securities and the U.S. Sovereign Credit Default Swap Market,” July 25, 2011

“The Unemployment Trust Fund (UTF): State Insolvency and Federal Loans to States,” July 8, 2011

“Can Contractionary Fiscal Policy Be Expansionary?,” June 6, 2011

The government’s relentless pursuit of people suspected of mishandling or leaking classified information underscores the need to combat the misuse of classification authority, wrote J. William Leonard, the former director of the Information Security Oversight Office (ISOO), in an op-ed in the Los Angeles Times today.

“The Obama administration, which has criminally prosecuted more leakers of purportedly classified information than all previous administrations combined, needs to stop and assess the way the government classifies information in the first place.”

“Classifying information that should not be kept secret can be just as harmful to the national interest as unauthorized disclosures of appropriately classified information,” he wrote.  See “When Secrecy Gets Out of Hand” by J. William Leonard, Los Angeles Times, August 10.

Mr. Leonard recently filed a complaint with the new ISOO director, John Fitzpatrick, based on his assessment that a document that served as a basis for criminal prosecution in the case of Thomas Drake should never have been classified at all.

A bill that would curb the ability of courts to impose secrecy orders on public health and safety information was favorably reported by the Senate Judiciary Committee last week.  See the report (pdf) on the Sunshine in Litigation Act of 2011, August 2, 2011.

“Court secrecy prevents the public from learning about public health and safety dangers,” the Committee report said.  “Over the past 20 years, we have learned about numerous cases where court-approved secrecy, in the form of protective orders and sealed settlements, has kept the public in the dark about serious public health and safety dangers.”

Such cases, many of which are cataloged in the report, have included “complications from silicone breast implants, adverse reactions to a prescription pain killer, ‘park to reverse’ problems in pick-up trucks, and defective heart valves.”

“This problem most often arises in product liability cases,” the report said. “In exchange for  monetary damages, the victim is often forced to agree to a provision that prohibits him or her from revealing information disclosed during the case.”  As a result, “the public remains unaware of critical health and safety information that could potentially save lives.”

To address the problem, the bill would require judges to consider the public’s interest in disclosure health and safety information before issuing a protective order prohibiting its disclosure.

The bill, which has been introduced repeatedly without success since 1994, was opposed by most Committee Republicans.  (Senators Grassley and Graham supported it.)

In a minority statement appended to the report, the Republican Senators said the bill was unnecessary and would be counterproductive.

“Without the certainty that a protective order will be upheld, litigants will raise significantly more objections to litigation discovery in order to protect confidential information.  Parties will be less willing to submit to discovery if they believe information will be disclosed to the public,” the dissenting Senators wrote.

“This bill would simply provide a tool to trial lawyers to conduct fishing expeditions and file frivolous lawsuits with impunity,” they said.

The bill was also opposed by the American Bar Association, who said the proposal was unwarranted and burdensome.