There is a “great need” for legislation that will specifically prohibit and punish unauthorized disclosures of communication intelligence (COMINT), the U.S. military argued in a newly-released 1944 report (pdf). Such a law was in fact enacted in 1950.

“Unauthorized disclosures… have jeopardized, on several occasions, the results of many years of arduous research and have endangered the safety of our armed forces,” according to the report.

The document provides “an historical resume of some of the famous publicity leaks of the past generation,” including an account of Herbert Yardley’s “Black Chamber” and a chapter on the “effects of publicity leaks on U.S. cryptanalytical activities,” in order “to demonstrate the need for greater security precautions.”

“It is recognized that a satisfactory solution of this problem will probably encroach upon the freedom of the press and freedom of speech,” the authors write in the late World War II-era report. “The issues at stake are so important, however, that some action must be taken in the interest of national safety.”

The 1944 report was released by the National Security Agency in response to a request from researcher Michael Ravnitzky, who provided a copy to Secrecy News.

See “The Need for New Legislation Against Unauthorized Disclosures of Communication Intelligence Activities,” report to the U.S. Army-Naval Communication Intelligence Coordinating Committee, Special Report No. 1, June 9, 1944.

In 1950, Congress enacted legislation to protect communications intelligence from unauthorized disclosure (18 U.S.C. 798). That statute embodied several of the specific recommendations formulated in the 1944 report.

Tsien Hsue-shen, the 96-year-old architect of China’s ballistic missile program, was once a promising student of aeronautics in the United States, a protégé of Theodore von Kármán, and then a leading expert in the field, until he came under suspicion of espionage and was deported in September 1955.

According to a declassified 1998 Defense Intelligence Agency briefing, Tsien had “worked on [the] Titan [missile] program in [the] 1950s,” and his immigration to China constituted an unauthorized transfer of Titan technology to that communist country.

But it turns out that the DIA claim cannot be true, because the first contract for the Titan development program was not let until October 1955, after Tsien (also known as Qian Xuesen) had departed the United States.

“Unless Tsien possessed the secret of time travel, there is no way that he could have worked on the Titan ICBM before the program even started,” wrote historian and space policy expert Dwayne Day in an incisive account in The Space Review.

Mr. Day discusses the Tsien case, the 1999 Cox Committee on Chinese espionage that received the classified DIA briefing on Tsien and endorsed it uncritically, as well as the work of the late historian Iris Chang, Tsien’s biographer. See “A Dragon in Winter” by Dwayne A. Day, The Space Review, January 14.

In a follow-on piece this week, Mr. Day reports further on the 1998 Defense Intelligence Agency briefing regarding Tsien (pdf), which was declassified in response to a request from the Federation of American Scientists. See “Is a Secret a Lie if it Just Isn’t True?”, January 21.

Former CIA analyst Allen Thomson told Secrecy News that he recalled receiving another DIA briefing a decade ago in which it was asserted that Tsien had worked on Titan penetration aids.

“I have the impression that Tsien just became a convenient boogeyman and nobody checked up on the facts, or much cared about them,” Mr. Thomson said.

Tsien was named “2007 person of the year” by Aviation Week and Space Technology magazine (01/06/08) as a way of acknowledging China’s recent advances in space.

But at a celebration in Beijing in honor of his 96th birthday on December 11, his secretary Tu Yuanji said that Tsien had “stayed at home” most of the past year, “reading something every day while leading a peaceful life.” (Xinhua, 12/10/07).

“The CIA requires all current and former Agency employees and contractors, and others who are obligated by CIA secrecy agreement, to submit for prepublication review to the CIA’s Publications Review Board (PRB) all intelligence-related materials intended for publication or public dissemination,” according to a 2007 regulation (pdf) on the subject.

The scope of the requirement, according to CIA, is expansive. It “includes, but is not limited to, works of fiction; books; newspaper columns; academic journal articles; magazine articles;… letters to the editor;… scripts; screenplays; internet blogs, emails, or other writings;” and so forth.

A redacted version of the latest version of the CIA regulation was released in response to a Freedom of Information Act lawsuit filed by the James Madison Project, a non-profit advocacy organization. The Project’s director, attorney Mark S. Zaid, frequently litigates pre-publication review disputes against the CIA.

The text of the regulation, “Agency Prepublication Review of Certain Material Prepared for Public Dissemination,” 30 May 2007, is here.

Related background on CIA prepublication review policy, including a (redacted) handbook for agency reviewers (pdf), can be found on this page.

Last week, Malaysia ratified the Comprehensive Test Ban Treaty (CTBT), bringing the total number of Treaty ratifications to 143, according to a CTBT Organization news release.

Among Southeast Asian nations, “Cambodia, the Lao People’s Democratic Republic, Malaysia, the Philippines, Singapore and Vietnam have now ratified the CTBT, whereas Brunei Darussalam, Indonesia, Myanmar and Thailand have yet to ratify it.”

To enter into force, the Treaty must be ratified by ten additional states with nuclear programs, including the United States, North Korea, Israel, China, Pakistan and Iran.

If and when that happens, the technical capability to verify compliance with the Treaty will be well in hand, according to a recent statement from the American Geophysical Union.

“When implemented, the American Geophysical Union and the Seismological Society of America are confident that the combined worldwide monitoring resources will meet the verification goals of the CTBT,” the AGU reaffirmed last month.

In a small step that could nevertheless have far-reaching consequences for government information policy, the Department of Defense is preparing to eliminate various markings such as “For Official Use Only” and “Limited Distribution” that regulate disclosure of unclassified documents and will replace them with a new standardized marking.

The DoD move (pdf) anticipates near-term Presidential approval of a new government-wide policy on so-called Sensitive But Unclassified information that would streamline and rationalize controls on unclassified information. It could also potentially lead to the public release of a vast amount of currently controlled information.

President Bush called for development of the new policy in a December 16, 2005 memorandum intended to promote information sharing.

In response to the Presidential memorandum, officials soon discovered that “there are at least 107 unique markings” for unclassified information “and more than 131 different labeling or handling processes,” according to testimony (pdf) last April by Amb. Thomas E. McNamara, Program Manager of the ODNI Information Sharing Environment.

In some cases the very same markings are used to refer to different control systems, Mr. McNamara explained. Thus, SSI usually means “Sensitive Security Information,” but sometimes it stands for “Source Selection Information.” Likewise, some agencies use ECI to designate “Export Controlled Information,” while others use it to mean “Enforcement Confidential Information,” each of which entail “very different safeguarding and dissemination controls.”

In short, the handling of unclassified information within government has become chaotic and counterproductive.

More than two years after the President’s directive, a new policy that replaces many of the existing information control categories with a new “Controlled Unclassified Information” (CUI) category is said to be close to final approval.

Last month, the Department of Defense established a CUI Task Force to oversee implementation of the impending new policy, according to a memo (pdf) from the DoD Deputy Chief Information Officer.

“The new policy will replace all of the markings currently used for CUI within DoD (e.g. FOUO, FOUO-LES, LIMITED DISTRIBUTION) with [the] new standardized marking,” the memo stated. “We anticipate White House approval of the new policy shortly.”

The DoD memo was first reported this week by Sebastian Sprenger in InsideDefense.com.

See “Transition to New Markings for Controlled Unclassified Information (CUI),” memorandum from David M. Wennergren, December 28, 2007.

At a minimum, the new policy should facilitate information sharing within the government. But it might possibly do much more than that.

While many existing control categories are expected to merely be consolidated and replaced by the new, uniform CUI marking, other controls may be eliminated outright, according to Amb. McNamara, the Information Sharing Environment Program Manager.

“The great majority of the information which is now controlled can be put in a simple unclassified, uncontrolled category, it seems to me,” he told Congress in 2006 (pdf).

If controls on “the great majority” of unclassified but restricted information are truly going to be removed, that would imply an unprecedented avalanche of disclosure of controlled government records. The recent DoD memo contains no hint of such an outcome.

Yet “that is the system that we are trying to put together,” Amb. McNamara said, “a rational limited set of categories that… can be applied to controllable information, but leave most of it as fully unclassified.”

See “Building the Information Sharing Environment,” hearing before the House Homeland Security Committee, May 10, 2006 (at p. 17).

The United States intervened to block South Korea from developing nuclear weapons in the 1970s, according to newly declassified Korean government documents.

South Korea was seeking to acquire nuclear reactors from Canada and nuclear reprocessing technology from France in support of a weapons program, but U.S. pressure led to cancellation of the latter purchase.

See “Park Sought to Develop Nuclear Weapons,” Korea Times, January 15.

Meanwhile, the island nation of Barbados this week ratified the Comprehensive Nuclear Test Ban. A total of 142 countries have now ratified the treaty, which prohibits all nuclear explosions.

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

“The Gulf Security Dialogue and Related Arms Sale Proposals,” January 14, 2008.

“Foreign Ownership of U.S. Financial Assets: Implications of a Withdrawal,” January 14, 2008.

“Laos: Background and U.S. Relations,” January 7, 2008.

“Pakistan-U.S. Relations,” updated January 11, 2008.

Much of the criticism directed at government secrecy is predicated on the idea that secrecy impedes government accountability and degrades public participation in the deliberative process.

But the secrecy system is also subject to growing internal criticism on altogether different grounds (pdf): namely, that it “has become dysfunctional in the face of current needs of national security.”

“The philosophy behind the policies for secrecy needs to move into the 21st Century and away from the WWII model which was deny to the enemy, grant to as few as possible,” said M.E. Bowman, a former FBI intelligence official who returned to government last year in a senior counterintelligence capacity.

“Today, in an information sharing environment USG [U.S. Government] personnel are just about always going to be in violation of one executive order (classification or access) or another (sharing). I truly believe that the USG would be better served with a different philosophy behind classification and access,” he told Secrecy News.

“I have never lost a court case on protecting secrecy, but that is because the criteria permitted me to win. In fact, a lot of the seminal FOIA law is argument that I developed in litigation. [But] I think the time is long past when we need to amend the criteria.”

Mr. Bowman elaborated his critique of the existing information security regime in an article that appeared last year in
Intelligencer, the journal of the Association of Former Intelligence Officers.

See “Dysfunctional Information Restrictions” by M.E. Bowman, Intelligencer, Fall/Winter 2006-2007, posted with the permission of the Association of Former Intelligence Officers.

“Despite the obvious difficulties, the need is real and of such a magnitude that changes to our heritage of information restrictions simply cannot be placed in the ‘too hard’ box,” he wrote. “We must update our philosophies of access and control, [and] change the guidelines that proceed from those philosophies.”

The growing use of the state secrets privilege could threaten basic constitutional rights, according to one recent critical analysis.

If current trends in government reliance on the state secrets privilege are allowed to continue, “it is questionable whether any constitutional complaint against the government involving classified information will ever be allowed to be adjudicated,” concluded Carrie Newton Lyons in a review published last year.

Ms. Lyons, a former CIA operations officer, presented her assessment in “The State Secrets Privilege: Expanding Its Scope Through Government Misuse” (pdf), Lewis & Clark Law Review, Volume 11, No. 1, Spring 2007.

Potential reforms to the state secrets privilege will be explored by Louis Fisher of the Law Library of Congress and other experts in a January 24 panel discussion sponsored by the Constitution Project.

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Emerging Trends in the Security Architecture in Asia: Bilateral and Multilateral Ties Among the United States, Japan, Australia, and India,” January 7, 2008.

“Trafficking in Persons: U.S. Policy and Issues for Congress,” January 10, 2008.

“Perjury Under Federal Law: A Brief Overview,” updated December 27, 2007.

“Kosovo’s Future Status and U.S. Policy,” updated December 28, 2007.

“China’s Holdings of U.S. Securities: Implications for the U.S. Economy,” January 9, 2008.

Only the President of the United States may authorize the use of riot control agents in war, even for defensive purposes, according to official U.S. military doctrine (pdf), although the Secretary of Defense may authorize their use for the protection or recovery of nuclear weapons.

So it was anomalous to say the least when employees of Blackwater Worldwide private security firm released a canister of CS gas over a Baghdad checkpoint in 2005, as reported by the New York Times today. See “2005 Use of Gas by Blackwater Leaves Questions,” by James Risen, January 10.

“A United States military spokesman in Baghdad refused to describe the current rules of engagement governing the use of riot control agents,” according to the Times story.

But to a great extent, those rules of engagement are specified in a U.S. Army Field manual which describes the permitted uses of riot control agents in wartime and in peacetime, as well as the authority required to employ them.

The 2003 Field Manual, which is still in effect, is FM 3-11.11, “Flame, Riot Control, and Herbicide Operations,” March 10, 2003.

The document has not been approved for public release, but a copy was obtained by Secrecy News. About 25 pages of the document, which detail the preparation of explosive devices, have been withheld from online publication by Secrecy News.

See, relatedly, “Blackwater Drops Tear Gas Grenades on Iraqis” by Jason Sigger, in Wired News’ Danger Room.

Noteworthy new publications from the Congressional Research Service include the following (all pdf):

“China’s ‘Soft Power’ in Southeast Asia,” January 4, 2008.

“How Crime in the United States Is Measured,” January 3, 2008.

“Democracy Promotion: Cornerstone of U.S. Foreign Policy?,” December 26, 2007.