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In an historic step, the U.S. Government will formally reveal the number of nuclear weapons in the U.S. arsenal.

Until now, the shifting size of the nuclear arsenal had only been declassified from 1945 up to 1961.  Current stockpile figures were the subject of more or less informed speculation.  The pending disclosure was first reported by the Washington Post.

Among other things, the declassification of the nuclear stockpile is a milestone in secrecy reform.  It means that what must be the single most significant number in the domain of national security policy will now be in the public domain.  It will also set a standard by which the nuclear transparency policies of other nations may be assessed.

If there is any cause for dismay in today’s announcement, it is that it took so long to accomplish.  The Department of Energy, which has the highest concentration of nuclear weapons expertise in the federal government, had proposed declassification of stockpile size as early as 1992, as noted in a 2000 DOE fact sheet on the subject.  But the DOE proposal was blocked by the Department of Defense.

Other DOE declassification proposals that have been stymied would have disclosed the explosive yield of retired or dismantled nuclear weapons (blocked by DOD), and the locations of former nuclear weapons storage sites abroad (blocked by DOD and State).  An Energy Department classification official told Secrecy News last week that the Department also favors public disclosure of the budget of the DOE Office of Intelligence (which had been public information up until 2004), but that the Director of National Intelligence had vetoed the move.

“We get blamed for a lot of stuff that’s not our fault,” the DOE official said.

Update: The newly declassified stockpile data were released by the Department of Defense in Fact Sheet: Increasing Transparency in the U.S. Nuclear Weapons Stockpile (pdf), May 3, 2010. A DoD background briefing on the new disclosure is here.

A federal court ruled (pdf) last year that the Department of Energy was obliged to disclose certain records concerning the Advanced Test Reactor (ATR) in Idaho after they were requested under the Freedom of Information Act by a public interest group, Keep Yellowstone Nuclear Free.  The court said that the exemptions to the FOIA claimed by DOE were not applicable in this case, and that the requested documents therefore must be released.

In order to prevent that from happening, DOE decided to designate portions of the records as “Unclassified Controlled Nuclear Information” or UCNI, which is protected by the Atomic Energy Act, and beyond the reach of FOIA.  “The documents have not previously been treated as UCNI,” DOE admitted to the court (pdf) last year, “and information related to the ATR has not been treated as UCNI since 1992, but” — prompted by the judge’s adverse FOIA ruling — “DOE has now determined that redacted portions of these documents fall within the statutory definition of UCNI.”

While there is abundant historical reason (pdf) to be skeptical of such opportunistic attempts to evade public disclosure, there is no specific reason to doubt that DOE acted in good faith in this case.  It may well be true that release of the withheld portions of the records — describing high consequence accident scenarios and locations of vital safety and security systems — could facilitate a “potentially catastrophic” act of sabotage, as DOE officials contended.

The FOIA requesters themselves agreed to accept the documents as redacted for UCNI.  The parties reached a settlement and the case was dismissed. Keep Yellowstone Nuclear Free declared victory with the receipt of some 1100 pages documenting ATR safety issues.

Last week, DOE’s Karl Hugo, who participated as a government classification expert in the case, presented his view of the issues (pdf) to a conference of DOE classification officers in Germantown, Maryland.  Two months ago, DOE issued an updated Order on “Identification and Protection of Unclassified Controlled Nuclear Information” (pdf) (DOE Order O471.1B, March 1, 2010).  Within weeks, the Obama Administration is expected to issue a somewhat controversial new executive order that is intended to standardize the use of controls on unclassified information across the government.

The Chief Justice of the United States has appointed Judge Martin L.C. Feldman of the Eastern District of Louisiana to a seven-year term on the Foreign Intelligence Surveillance Court, effective May 19, 2010.  He replaces Judge George P. Kazen, whose term on the Court ends this month.

Judge Feldman’s appointment to the FISA Court has not been publicly announced, but it was confirmed for Secrecy News on Friday by Mr. Sheldon L. Snook of the DC District Court, who also serves as a spokesman for the secretive FISA Court.

The FISA Court reviews and approves government applications for counterintelligence surveillance and physical search under the Foreign Intelligence Surveillance Act.  The updated Court membership for 2010 may be found here.

Judge Feldman was appointed to the bench by President Reagan in 1983.  Among his various other credentials and affiliations, he has served as an advisor to the “Court Appointed Scientific Experts” program of the American Association for the Advancement of Science, which assists courts in identifying scientific experts who can serve in judicial proceedings.

Judge Feldman was in the news earlier this year after he ruled in favor of the non-profit journalism organization ProPublica, finding that it had not committed libel in a news story about the mistreatment of medical patients following Hurricane Katrina.  The news story in question, written by ProPublica reporter Sheri Fink and published in the New York Times Magazine, subsequently won a Pulitzer Prize for Investigative Reporting.

The pending prosecution of former National Security Agency official Thomas A. Drake, who was alleged to be a source of classified information in a series of newspaper articles about the NSA, will present “novel” legal issues for the court to consider, prosecutors and defense attorneys said in a joint motion last week.

“The indictment raises complex factual and legal issues and novel questions of law relating to, among other things, the retention of classified materials,” they wrote in an April 29 motion (pdf) to waive the right to a speedy trial.

Unlike former DoD official Larry Franklin in the troubled AIPAC case (which was abandoned by the government before trial last year), Mr. Drake was not charged with unauthorized disclosure of classified information.  Instead, he is accused of “willful retention of classified information.”  The precise nature of this offense, and the threshold for culpability in this case, remain to be litigated.

“The prosecution of this case will involve classified documents,” the joint motion stated, and the defense “may involve classified documents,” necessitating that defense counsel obtain the required security clearances.  “The pre-indictment investigation in this case spanned more than two years,” the motion noted, though defense counsel was not appointed until after the indictment (pdf) issued.

A trial date has been tentatively scheduled for October 18, 2010.

Incidents of fratricide in the U.S. war on terrorism increased in recent years, according to a new report (pdf) from the U.S. Army.

“Fratricide” — the unintended killing or injury of friendly forces — “is a harsh reality during combat operations,” the study states.  “Over the course of 2004-2007, the number of fratricide incidents increased, and experts speculate this is due to the high operational tempo and the reliance on technology during the current war.”

According to official data, “there were 55 U.S. Army fratricide incidents from 11 September 2001 to 30 March 2008.  Forty of these were Class A accidents” — involving damage costs of $2 million or more and/or destruction of an Army aircraft, missile or spacecraft and/or fatality or permanent total disability — “resulting in the deaths of 30 U.S. Army personnel.”

Human error is a primary causal factor in many fratricide incidents, the study indicated, and “therefore, human error must be considered in the design and development of fratricide countermeasures, including both technical and human-centric solutions… Improved supervision and leadership may have the greatest potential to reduce U.S. fratricide incidents.”

See “An Analysis of U.S. Army Fratricide Incidents during the Global War on Terror (11 September 2001 to 31 March 2008)” by Catherine M. Webb and Kate J. Hewett, U.S. Army Aeromedical Research Laboratory, March 2010.

Although the U.S. Constitution assigned the power to declare war to Congress, the use of armed forces has often been initiated by the President without congressional authorization.  The enactment of the War Powers Resolution in 1973 was an attempt by Congress to reassert its constitutional role and to regulate military action by the executive branch.  For the most part, it failed to accomplish those goals.

“The main purpose of the Resolution was to establish procedures for both branches to share in decisions that might get the United States involved in war,” a new report (pdf) from the Congressional Research Service (CRS) observes. “The drafters sought to circumscribe the President’s authority to use armed forces abroad in hostilities or potential hostilities without a declaration of war or other congressional authorization, yet provide enough flexibility to permit him to respond to attack or other emergencies.”

“But the record of the War Powers Resolution since its enactment has been mixed, and after 30 years it remains controversial,” the CRS report said.

The new report documents that mixed record, listing all of the instances from 1973 to December 2009 in which Presidents submitted reports to Congress under the Resolution, as well as instances of the use of U.S. armed forces that were not reported.  See “The War Powers Resolution: After Thirty-Six Years,” April 22, 2010.

For reasons that defy easy comprehension, Congress does not believe that CRS reports should be made readily available to members of the public, so identifying and acquiring reports of interest takes a bit of extra effort.  Noteworthy new CRS reports obtained by Secrecy News include the following (all pdf).

“Monitoring and Verification in Arms Control,” April 21, 2010.

“Emergency Communications: Broadband and the Future of 911,” April 27, 2010.

“Unauthorized Aliens in the United States,” April 27, 2010.

“Bangladesh: Political and Strategic Developments and U.S. Interests,” April 1, 2010.

“Guinea’s New Transitional Government: Emerging Issues for U.S. Policy,” April 23, 2010.

The Department of Defense denied security clearances to 8,065 individuals in 2008, according to a recent congressional hearing volume.  “These numbers represent a small percentage of the total number of security clearance investigations.  The vast majority of investigations are adjudicated favorably.”  See “Security Clearance Reform: Moving Forward on Modernization,” Senate Homeland Security and Governmental Affairs Committee, September 15, 2009 (published April 2010). (Update: The statistics on clearance denials are given on page 92 of the PDF version of the hearing.)

Among other recently published congressional hearing volumes on national security topics are these:

“An Uneasy Relationship: U.S. Reliance on Private Security Firms in Overseas Operations” (pdf), Senate Homeland Security and Governmental Affairs Committee, February 27, 2008 (published March 2010).

“Reauthorizing the USA PATRIOT Act: Ensuring Liberty,” Senate Judiciary Committee, September 23, 2009 (published April 2010).

“A Strategic and Economic Review of Aerospace Exports” (pdf), House Foreign Affairs Committee, December 9, 2009 (published April 2010).

The threat of German submarines laying explosive mines off the east coast of the United States was a source of alarm during World War I, but the residual hazards had diminished within a few years of the war’s end, according to a comprehensive survey (large pdf) published by the U.S. Navy in 1920.

“The reports of the sightings of submarines have been without number,” the Navy said, “and great care has been exercised to try to corroborate or validate the reports, and all have been rejected which do not answer such conditions as to accuracy.”

“The information received as to the number of mines in each area and the reports of their destruction leave little or no doubt that the Atlantic coast is free from any danger as to mines,” according to the 1920 Navy report, which was digitized by the Combined Arms Research Library at Fort Leavenworth.  See “German Submarine Activities on the Atlantic Coast of the United States and Canada,” Department of the Navy, 1920.

“The problem we face,” said Defense Secretary Robert M. Gates last week, “is that the current system, which has not been significantly altered since the end of the Cold War, originated and evolved in a very different era with a very different array of concerns in mind.”  He was talking about the U.S. export control process, but with minor differences he might just as well have been speaking about the national security classification system, since an increasingly obsolete model of security underlies both policy regimes.

“America’s decades-old, bureaucratically labyrinthine system does not serve our 21st century security needs or our economic interests,” Secretary Gates said April 20 at an event hosted by Business Executives for National Security.  “Our security interests would be far better served by a more agile, transparent, predictable and efficient regime.  Tinkering around the edges of the current system will not do.”

The White House expressed a similar view in an April 20 fact sheet. The current U.S. export control system, it said, “is overly complicated, contains too many redundancies, and tries to protect too much.”  The scope of export controls is so broad that it “dilutes our ability to adequately control and protect those key items and technologies that must be protected for our national security.  The goal of the reform effort is ‘to build high walls around a smaller yard’ by focusing our enforcement efforts on our ‘crown jewels’,” the White House said.

In fact, the export control system is so messed up, senior defense officials told reporters at an April 19 press briefing, that “the system itself poses a threat to national security.”

The Administration’s proposed solution for export control policy is based on principles of simplification, consolidation and a focus on the highest value items to be controlled.  This translates into a single export control list, a single licensing agency, a single enforcement agency, and a single information technology system for the entire export control program.

A similar approach could be applied to classification policy, perhaps in the following way.

A single classification system:  Currently there are two parallel classification systems, one for general national security information, based on executive order, and one for nuclear weapons-related information, based on the Atomic Energy Act.  In many areas of defense and foreign policy, the two systems overlap, generating unnecessary complexity and confusion.  The dual classification systems also significantly complicate the declassification process.  Moving to a single classification system would simplify the classification process, facilitate training of personnel, and increase declassification productivity.  A useful interim step would be to transfer the nuclear weapons classification category known as “Formerly Restricted Data” (FRD) into the general national security classification system so that FRD records — on topics such as stockpile size and weapon storage locations abroad — could be handled and declassified just like other records containing national security information.

A consolidated set of classification guides:  Currently there are nearly three thousand classification guides in government that prescribe what information is to be classified and at what level.  Instead there could be maybe three– one for defense operations and technology, one for intelligence, and one for foreign policy (and perhaps one more for nuclear weapons information if the two classification systems are combined).  This kind of consolidation would help promote standardization across agencies, including ease of correction and change of classification policies.  It would also facilitate oversight and enforcement of proper classification practices.

An enhanced oversight mechanism:  If there is going to be increased uniformity and consistency in classification across the government, then a strong oversight mechanism will be needed to adjudicate and resolve the inevitable conflicts that will arise among individual agencies, and the deviations between policy and practice.  The existing Information Security Oversight Office could help fulfill this role if the President grants it the power and the responsibility to overrule erroneous or unwise classification decisions.

A drastic reduction in scope of classification:  Just as the export control system “tries to protect too much,” the same is true in spades of the classification system.  (Random example: The total dollar cost of the CIA’s CORONA satellite program, which ended in 1972, is still considered classified information.)  “Frederick the Great’s famous maxim that he who defends everything defends nothing certainly applies to export control,” Secretary Gates said last week.  The corresponding view in classification policy is Justice Potter Stewart’s familiar statement that “when everything is classified, then nothing is classified….”  The forthcoming Fundamental Classification Guidance Review that was required by executive order 13526 should help to reverse the growth of the classification system over the next two years.  But other targeted measures may also be needed to achieve the optimum classification state of “high walls around narrow areas.”

“The proposition that a more focused and streamlined system actually helps our national security can go against conventional wisdom,” Secretary Gates said.  Nevertheless, “I believe it is the right approach, and it is urgently needed, given the harmful effects of continuing with the existing set of outdated processes, institutions and assumptions.”

The Obama Administration is just beginning to consider the possible outlines of a future classification system that is “fundamentally transformed.”

“I … look forward to reviewing recommendations from the study that the National Security Advisor will undertake in cooperation with the Public Interest Declassification Board to design a more fundamental transformation of the security classification system,” President Obama wrote when the latest executive order on classification policy was issued on December 29.

China’s interest in the use of airships — balloons, blimps and various other lighter-than-air aircraft — was discussed in a new report (pdf) from the National Air and Space Intelligence Center (NASIC).

Airships have been used in China for disaster relief, since they were able to reach distant areas when ordinary transportation was impaired, and for construction in mountainous or unstable areas, the report said.  High altitude airships may also be considered for wide area surveillance, early warning detection, or other military applications.

See “Current and Potential Applications of Chinese Aerostats (Airships),” NASIC OSINT Topic Report, March 23, 2010 (For Official Use Only).

The U.S. has deployed airships along the border with Mexico to aid in drug interdiction, and in support of operations in Iraq and Afghanistan.  See “Potential Military Use of Airships and Aerostats” (pdf) by the late Christopher Bolkcom, Congressional Research Service, September 1, 2006.

The U.S. State Department is inviting members of the public to present their concerns about human rights in the United States as part of the Universal Periodic Review (UPR) process, in which the human rights records of all UN Member States are to be reviewed.

“In the pursuit of a transparent and effective UPR process, the Department of State is encouraging the American public, including non-governmental organizations and civil society more broadly, to provide input regarding human rights in the United States directly to the Department of State.”

“Your feedback is vital for us to better gauge the U.S. human rights situation now, and how protection of human rights can be improved in our country and around the world,” the State Department website said. “We look forward to receiving your comments.”

The Federation of American Scientists asked the State Department to turn its attention to those cases where a resolution of alleged human rights violations has been barred by the government’s use of the state secrets privilege.

“There are innocent individuals who have been swept up in U.S. Government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged,” we wrote.  “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the Government’s invocation of the state secrets privilege. As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”

“If the judicial process in such cases is foreclosed by the state secrets privilege, then an alternate procedure should be created to rectify the wrongs that may have been committed,” we suggested.

New technologies could be used to improve internet security but the impact of those technologies on personal privacy is classified information, the director of the National Security Agency told Congress last week.

“How could the Internet be designed differently to provide much greater inherent security?” the Senate Armed Services Committee asked Lt. General Keith Alexander, who has been nominated to lead the new U.S. Cyber Command.

“The design of the Internet is – and will continue to evolve – based on technological advancements. These new technologies will enhance mobility and, if properly implemented, security,” replied Gen. Alexander in his written answers (pdf) in advance of an April 15 Committee hearing.

“What would the impact be on privacy, both pro and con?” the Committee continued.

The answer to that question was “provided in the classified supplement” to the General’s response, and was not made public (see question 27).

“It is astounding that Lt. Gen. Alexander’s remarks on the impact on privacy of future modifications to the Internet under his command should be withheld from the public,” wrote Jared Kaprove and John Verdi of the Electronic Privacy Information Center (EPIC), especially given the President’s declared commitment to upholding privacy protection in the nation’s cybersecurity policy.

Consequently, EPIC filed a Freedom of Information Act request seeking disclosure of the classified supplement to General Alexander’s answers.  “There is a clear public interest in making known the Director’s views on this critical topic,” EPIC wrote in its request (pdf).