In May 2009, North Korea announced that it had conducted its second nuclear explosive test.  Although the event generated a seismic signature consistent with a nuclear explosion, it produced no detectable release of radioactive gases or particulates (fallout).  This either means that North Korea actually conducted a non-nuclear simulation of a nuclear test, or else it managed to achieve complete containment of a real nuclear explosion.  Since detection of radioactive emissions provides the most unambiguous confirmation of a nuclear explosion, the successful containment of a nuclear test could be problematic for verification of a treaty banning such explosions.

This conundrum is explored in a new report from the Congressional Research Service.  See “North Korea’s 2009 Nuclear Test: Containment, Monitoring, Implications” (pdf), April 2, 2010.

Congress has refused to make reports like this directly available to the public.  Other noteworthy new CRS products obtained by Secrecy News that have not been publicly released include the following (all pdf).

“Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings,” April 1, 2010.

“Federal Building and Facility Security,” March 24, 2010.

“The U.S. Motor Vehicle Industry: Confronting a New Dynamic in the Global Economy,” March 26, 2010.

“U.S. Initiatives to Promote Global Internet Freedom: Issues, Policy, and Technology,” April 5, 2010.

The Russian-language internet is increasingly subject to control by the Russian government and its allies in the private sector, according to a new report (pdf) from the DNI Open Source Center (OSC). Except for a vocal minority of bloggers and human rights activists, the Russian public is mostly indifferent to or even supportive of government controls on the internet, the OSC report said.

“Over the last several years, pro-government oligarchs have accumulated significant stakes in the leading portals of the Russian Internet [or Runet]. Between them, they own the majority of the most popular Russian social networking sites and the majority of the most popular Russian websites,” the OSC found.

“While media outlets owned by government companies have not yet shown signs of censorship, the leadership and owners of these Russian investment companies are close to the Kremlin and may be willing to cede their business interests to government priorities,” the OSC report said.

A copy of the OSC analysis was obtained by Secrecy News and posted on the website of the Federation of American Scientists. See “Kremlin Allies’ Expanding Control of Runet Provokes Only Limited Opposition,” OSC Media Aid, February 28, 2010.

“Although some independent bloggers and press sources raised concerns at the growing government presence in the Internet, the public is probably unaware of the extent to which the Runet is owned by Kremlin allies,” the report said. “Most buy-outs were not well publicized, appearing only in specialized business dailies that reported only the fact of the deal.”

The OSC itemized several of the most important private acquisitions of Russian websites and identified their proprietors.

So, for example, “Oligarch Mikhail Prokhorov, who is known to cooperate with the Kremlin, owns RosBiznesKonsalting (RBC), which has been quietly gobbling up Russian Internet (Runet) domains, holding 21% of the Runet’s sites, according to its last annual report in 2007, including Loveplanet.ru, the second-most popular online dating service in the Runet.”

In any case, “most Russians are not overly concerned about censorship in general or censorship of the Internet. Most actually support censoring the Internet,” according to the OSC. “Those who do react negatively to threats to Internet freedom tend to be opposition members or human rights activists who would be directly affected by censorship.”

Thus, opposition blogger Oleg Kozyrev and reporter Oleg Salmanov wrote in 2008, “The Russian Internet community is following with alarm the social networks passing under the control of those who are loyal to the authorities and responsive to their requests.”

The first criminal conviction in Russia for comments posted on a blog also took place in 2008, the OSC noted. Savva Terentyev received a one-year suspended prison sentence for describing police as “filth” and writing that “a corrupt cop should be ceremonially burnt daily” in every town square. He acknowledged writing the comments but pleaded not guilty to charges of extremism.

“The Russian Government does not need to own the Runet in order to monitor or control it,” the OSC concluded. “It has numerous laws and policies in place that allow it to limit or threaten open discussion on the Internet. Portals owned by Kremlin allies do not yet exhibit signs of censorship, but their acquisitions provide officials an additional lever to control the content of the Runet if the Kremlin feels threatened.”

An appendix to the OSC report, which was marked For Official Use Only, profiles the major private investors in the Russian internet. A second appendix lists the top 100 Russian websites, along with their owners.

The U.S. Army is still struggling to come to grips with the unusually high rate of suicide within its ranks.

“The Army ratios are above the national average and in some months recently, there have been more suicides in the Army than combat deaths in Iraq and Afghanistan,” observed Nancy Youssef of McClatchy News last week. “There is no pattern to suicides. One third who commit suicide have never served in combat; another third commit suicide while in combat; and yet another third do it once they return, according to Army statistics.”

Secretary of the Army John M. McHugh issued two directives on March 26 that are intended to further an understanding of the problem and to improve the availability of information to surviving family members.

Effectively immediately, all suspected suicides will be subject to an official (AR 15-6) investigation, the purpose of which is “to identify the circumstances, methods, and the contributing factors surrounding the event…. The completed investigation should provide clear, relevant, and practical recommendation(s) to prevent future suicides,” according to Army Directive 2010-01 (pdf).

A second Army directive (pdf) provided guidance for reporting (and redacting) information to be provided to family members, who are to be “kept fully informed while the investigation is underway.”

Although national security, third-person privacy and other FOIA-exempt information may be withheld, “the release authority cannot withhold information merely because it may be emotionally difficult for the surviving Family members to see or hear.”  However, “potentially upsetting information should be segregated from the body of the report and made available in a separate sealed envelope that is clearly marked as potentially upsetting information.”

An updated official account of the number of Army suicides through the end of March will be published on Thursday, reported Sig Christenson of the San Antonio Express-News on April 2.

The origins and development of North Korea’s military forces, from the vantage point of 1952, are described in a declassified U.S. Army intelligence report (large pdf).

“Although the North Korean Army was not officially activated until 8 February 1948, the backbone of the armed forces was forged in 1946 under the mask of Central Peace Preservation Units and Youth Training Organizations. Using battle-hardened Korean veterans of the Chinese Communist Forces as a core, the puppet government built a modern military force whose only glaring weakness was in a lack of air power. The striking comparison in organization, logistics and tactics of the North Korean Army with those of the Soviet ground forces is attributable to the influence of the Soviet occupation army and the multitude of advisors which were left behind upon the Red Army’s withdrawal.”

A digital copy of the report was made available by the Combined Arms Research Library at Fort Leavenworth, KS.  See “History of the North Korean Army,” U.S. Army Far East Command, July 31, 1952.

Warrantless surveillance of an Islamic charity in Oregon in 2004 violated the Foreign Intelligence Surveillance Act (FISA), a court ruled (pdf) on March 31.

In the culmination of a four-year lawsuit, Judge Vaughn Walker of the Northern District of California found that the government had unlawfully intercepted international telephone conversations of the Al-Haramain Islamic Foundation without a warrant, as required by the FISA for intelligence and counterterrorism surveillance.  The government had contended that the state secrets privilege barred a resolution of the case, but the court found that the defendants were able to make their case without the use of state secrets.

At least by implication, the ruling means that aspects of President Bush’s Terrorist Surveillance Program were illegal.  Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight.  While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court’s ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.

The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute.  “The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct,” government attorneys told the court.  But had the Bush and Obama Administrations’ use of the privilege prevailed, that is exactly what would have happened– conduct that has now been found illegal would have been covered up.  To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act.  That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.

Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration’s warrantless surveillance program.  A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute (18 USC 798) that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information.  But it was the Times story that set the stage for the Al-Haramain lawsuit.  With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times’ revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it.

New Congressional Research Service reports obtained by Secrecy News that have not been made readily available to the public include the following (all pdf):

“Federal Efforts to Address the Threat of Bioterrorism: Selected Issues for Congress,” March 18, 2010.

“Changes in the Arctic: Background and Issues for Congress,” March 30, 2010.

“Deforestation and Climate Change,” March 24, 2010.

“The Impact of Major Legislation on Budget Deficits: 2001 to 2009,” March 23, 2010.

“GAO Bid Protests: An Overview of Timeframes and Procedures,” March 15, 2010.

“GAO Bid Protests: Trends, Analysis, and Options for Congress,” February 11, 2009.

“The Future of U.S. Trade Policy: An Analysis of Issues and Options for the 111th Congress,” March 24, 2010.

“Europe’s Preferential Trade Agreements: Status, Content, and Implications,” March 22, 2010.

“F-35 Alternate Engine Program: Background and Issues for Congress,” March 22, 2010.

“Cyprus: Reunification Proving Elusive,” April 1, 2010.

A bill on government transparency that was introduced by Rep. Mike Quigley (D-IL) last week would finally make all non-confidential CRS reports publicly available online. There must have been a dozen such proposals that have been introduced in Congress over the last 15 years without effect, and it is not clear whether the latest iteration will fare any better.

“I believe that there is a discrepancy between what most Americans believe is legal and what the government is actually doing under the Patriot Act,” said Sen. Ron Wyden (D-OR) in a statement last week on the Senate floor regarding reform of the Patriot Act.

“In my view, any discrepancy of this sort is intolerable and untenable, and can only be fixed by greater transparency and openness.”

“Most members of the public do not expect to have detailed information about how intelligence collection is actually conducted,” Sen. Wyden said, “but they do expect to understand the boundaries of what the law does and does not allow, so that they can ratify or reject the decisions that public officials make on their behalf.”

Under present circumstances, Sen. Wyden said, Americans do not have an accurate perception of what the Patriot Act permits and how it is being used and, he said on Thursday, this is unacceptable.

“There is key information that is relevant to the debate on the Patriot Act that is currently classified.  Over the past two and a half years, I have pressed the executive branch to declassify this information in a responsible way, so that members of Congress and the public can have an informed debate about what the law should actually be.”

In partial response, he said, the Attorney General and the Director of National Intelligence have produced a classified account of the use of the Patriot Act that any member of Congress can now read in the intelligence committees’ secure offices.

“But by itself this step does not go nearly far enough,” he said.  “It is just as essential for the public to have this information as well.”

Among other things, Sen. Wyden noted that the so-called “business records” provision of the Patriot Act (Section 215) actually applies to collection of “any tangible thing,” which means that “it covers things like blood or tissue samples as well.”

As of last week, there is now a U.S. Government national security agency called the Biometrics Identity Management Agency (BIMA).  It supersedes a Biometrics Task Force that was established in 2000.

Though nominally a component of the Army, the biometrics agency has Defense Department-wide responsibilities.

“The Biometrics Identity Management Agency leads Department of Defense activities to prioritize, integrate, and synchronize biometrics technologies and capabilities and to manage the Department of Defense’s authoritative biometrics database to support the National Security Strategy,” according to a March 23 Order (pdf) issued by Army Secretary John M. McHugh that redesignated the previous Biometrics Task Force as the BIMA.

Biometrics is generally defined as “a measurable biological (anatomical and physiological) [or] behavioral characteristic that can be used for automated recognition.”

“Biometric data [are] normally unclassified,” according to a 2008 DoD directive (pdf).  “However, elements of the contextual data, information associated with biometric collection, and/or associated intelligence analysis may be classified.”

“Biometrics-enabled Intelligence [refers to] intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity.”

“Biometrics is an important enabler that shall be fully integrated into the conduct of DoD activities to support the full range of military operations,” the 2008 directive stated.

“Every day thousands of [biometric] records are collected and sent to the Department of Defense (DOD) Automated Biometric Identification System (ABIS) to store and compare against existing records,” a 2009 DoD report (pdf) said. “The technology is improving such that a submission from theater [e.g., in Afghanistan] can be searched in the DOD ABIS and a response sent back to theater in less than two minutes.”

“Realtime positive identification of persons of interest enables Coalition forces to target, track, and prosecute known or potential adversaries,” the DoD report said.

A new White House report to Congress (pdf) defines “strategic communication” as “the synchronization of our words and deeds as well as deliberate efforts to communicate and engage with intended audiences.”

“This understanding of strategic communication is driven by a recognition that what we do is often more important than what we say because actions have communicative value and send messages,” the report stated.  “Every action that the United States Government takes sends a message.”

Unfortunately, the report does not begin to acknowledge any instances in which U.S. government actions are inconsistent with U.S. government words,  thus necessitating their “synchronization,” and so it is not very illuminating.

A copy of the report, transmitted to Congress on March 16 and reported March 25 by Inside the Pentagon, is available here.

The report refers in passing to a Presidential Study Directive on Development, a document that has not yet surfaced in the public domain.

WikiLeaks.org, which publishes confidential documents online, says that it is being harassed by U.S. military and intelligence agencies because of its disclosures of restricted information, including the forthcoming release of a classified U.S. military video of an air strike in Afghanistan that produced civilian casualties.  But those claims are disputed and can hardly be taken at face value.

“That WikiLeaks is being targeted by the U.S. Government for surveillance and disruption is beyond doubt,” declared Glenn Greenwald in Salon.com.

In support of this conclusion he cited the detention of a minor in Iceland last week who was supposedly questioned about an incriminating WikiLeaks video.  But there is no independent corroboration of this incident.  And WikiLeaks’ account of what transpired, though recounted by Salon as fact, is disputed by Iceland’s police:

“Chief of police in Reykjavik, Fridrik Smari Bjorgvinsson, said the only link he has been able to establish between the allegations and his force was the arrest of a 17 year-old in Kopavogur on Monday for breaking into a business premises. Bjorgvinsson emphasised that Icelandic police have not been working with the American secret services on the matter, as Wikileaks spokesmen allege.”

Perhaps the Reykjavik police chief is also part of a global campaign to destroy WikiLeaks.  Or perhaps the whole story is one of mystification and error.

Although the state secrets privilege is not much in the news at the moment, it continues to percolate in the law review literature.

The privilege, narrowly conceived, is a way for the government to block the introduction in court of specific pieces of evidence that it deems too sensitive for disclosure.  But in recent years, the invocation of the privilege has led to the termination and dismissal of entire cases.

Last September, Attorney General Holder established new internal procedures to “ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

But “the new policy cannot serve as an adequate accountability mechanism,” according to a new law review paper, particularly since “nothing in the policy compels administration cooperation with courts once the state secrets privilege is asserted.”  See “State Secrets and Executive Accountability” by Christina E. Wells, Constitutional Commentary, forthcoming.

“Between 2001 and 2009 the government asserted state secrets in more than 100 cases,” a much higher count than previously reported, “while in scores more litigants appealed to the doctrine in anticipation of government intervention.”  See “The Shadow of State Secrets” by Laura Donohue, University of Pennsylvania Law Review, forthcoming.

Another pending law review paper of interest, though not specifically on the state secrets privilege, is “A New Era of Openness? Disclosing Intelligence to Congress Under Obama” by Kathleen Clark, Constitutional Commentary, forthcoming.

Most criticism of the Freedom of Information Act centers on agency refusals to disclose requested records in a timely manner.  But a federal appeals court said this week that a Defense Department agency was “arbitrary and capricious” in its decision to release documents to a Freedom of Information Act requester.

The ruling comes shortly after the release of several new evaluations of government compliance with the Freedom of Information Act by the National Security Archive, the Associated Press, and Citizens for Responsibility and Ethics in Washington.  Each of these independent efforts found that FOIA performance in the first year of the Obama Administration in one way or another had fallen short of the Administration’s proclaimed standard of “unprecedented openness.”  Each report identified questionable patterns in some agencies’ handling of FOIA requests, mostly involving the frequency of denials, the persistence of backlogs of unanswered requests, and haphazard implementation of new Obama FOIA policies.

None of the critics complained of excessive disclosure.  But a federal appeals court this week ruled (pdf) that the Defense Contract Management Agency (DCMA) had been too forthcoming and had tried to disclose information in response to a FOIA request that arguably should be withheld.

After the DCMA granted a FOIA request in 2005 to release certain audit reports involving two DoD contractors, the affected companies filed so-called “reverse FOIA” lawsuits to block the disclosures.  Those companies (Sikorsky Aircraft and Pratt & Whitney) said that the proposed releases would cause them “embarrassment or negative publicity” and would compromise proprietary information that could be exploited by their competitors.  The Defense Department disputed these claims and prevailed against the companies in district court.  Upon appeal, the higher court concurred that “embarrassment” was not a legitimate grounds for withholding, but it found that the possible compromise of proprietary information had not been adequately taken into account by the lower court.

“DCMA’s decision to release the documents was arbitrary and capricious,” the court said.  It therefore reversed the lower court’s ruling in favor of disclosure, and remanded the case for further consideration. More background on the case is available from the Project on Government Oversight here.

So is the FOIA process too restrictive in denying information, or too lax in releasing it?  Any FOIA requester will answer that it’s too restrictive.  For one thing, just as overclassification is prevalent in many national security agencies, unnecessary withholding of information under FOIA because of dubious classification controls is likewise commonplace.

But a larger point is that annual statistics on FOIA releases and denials, like those reported by agencies last week, are an imperfect indicator of changes in government openness, for at least two reasons.

First, the FOIA is not only a disclosure statute, it is also a withholding statute, i.e. it authorizes or requires both actions under various circumstances.  If an agency received 100 requests for the blueprints of a classified weapon system and it issued 100 denials, the agency would have complied with FOIA perfectly, because Congress did not intend for properly classified material to be disclosed under the Act. Denials are not necessarily a sign of bad faith, or of a failure of FOIA policy.

Second, the comparison of FOIA release and denial data between last year and the year before, as performed by the Associated Press and others, would be valid and interesting only if the initial FOIA requests each year were identical, or at least roughly similar.  But no effort has been made to demonstrate that that is so.

For the same reasons, it is doubtful that Attorney General Eric Holder was correct to say that a recent increase in the proportion of FOIA disclosures demonstrated increasing openness in the Justice Department, as he did on March 15:  “Today, I’m pleased to report that the disturbing 2008 trend – a reduction in this Department’s rate of disclosures – has been completely reversed.”

By itself, a net increase in disclosures is not a sure sign of a new devotion to openness, nor is a reduction in the rate of disclosures conclusive evidence of non-compliance with FOIA or of agency hypocrisy.

(If there were a statistical rise in judicial rulings against the government in FOIA cases, that would be a strong indication that agencies were increasingly acting in violation of the law.  But that doesn’t seem to be the case either.)

Another reason why annual disclosure rates are unreliable or ambiguous indicators is that they can be artificially diminished by spurious requests.  The Central Intelligence Agency’s 2009 log of FOIA requests (flagged by cryptome.org) lists quite a few eccentric and offbeat requests that are clogging CIA FOIA channels, along with numerous bona fide inquiries.

One requester asked for CIA “documents pertaining to the Best Buy located at 4500 Wisconsin Ave NW” in Washington DC.  Under the peculiar terms of the FOIA, the request must be processed like any other.  But it would be quite surprising if a FOIA request for CIA records about this “facility,” which I happen to walk by every day, yielded anything other than a “no records” response.  If so, such a negative response would automatically lower CIA’s annual rate of disclosure without providing meaningful insight into CIA FOIA policy.