Attorneys for former government scientist Steven J. Hatfill, who is suing the New York Times for linking him to the 2001 anthrax attacks, filed a vigorous rebuttal (pdf) earlier this month against a Times argument that the “state secrets” doctrine should dictate dismissal of the lawsuit.

The Hatfill rebuttal was filed in sealed form on January 12. On the same day, however, the Court dismissed the case for unrelated reasons that have not yet been published.

In a December 12 motion, the New York Times had argued that classification restrictions imposed on government witnesses were equivalent to an assertion of the state secrets privilege and that the case should be dismissed on that basis, since the restrictions limited the Times’ ability to obtain the information needed for its defense.

That’s nonsense, said Dr. Hatfill’s attorneys.

“For one thing, a court may not even consider dismissal of a case on “state secret” grounds until after a department head of a government agency invokes that doctrine, something that has never occurred here,” they wrote.

“And the notion that the inability of The Times to obtain any of this imagined evidence should relieve The Times of the burden of defending itself based on what it actually knew when it ruined Dr. Hatfill’s life is nothing short of offensive.”

Since the case has now been dismissed, it is unlikely that the Court will resolve the dispute over the applicability of the “state secrets” doctrine. But the sealed opposition from Dr. Hatfill’s attorneys has just been released in redacted form.

Some noteworthy new reports of the Congressional Research Service that are not readily available to the public include the following, obtained by Secrecy News (all pdf).

“Congressional Restrictions on U.S. Military Operations in Vietnam, Cambodia, Laos, Somalia, and Kosovo: Funding and Non-Funding Approaches,” January 16, 2007.

“Defense Contracting in Iraq: Issues and Options for Congress,” January 26, 2007.

“The U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review: An Overview,” January 24, 2007.

“Electronic Surveillance Modernization Act, as Passed by the House of Representatives,” updated January 18, 2007.

“North Korea’s Nuclear Weapons Development and Diplomacy,” updated January 3, 2007.

“International Terrorism: Threat, Policy, and Response,” updated January 3, 2007.

“Protection of National Security Information,” updated December 26, 2006.

After two years without an annual intelligence authorization and more than three months into Fiscal Year 2007, the FY 2007 intelligence authorization bill (S. 372) has been reintroduced in the Senate and reported out of the Senate Intelligence Committee. See the January 24 Committee report here.

“This is a critically important piece of national security legislation, and the fact that our intelligence agencies have operated without authorizing legislation for two years represents an unfortunate failure of Congressional oversight,” wrote Senators Ron Wyden and Russ Feingold, who noted that they nevertheless had concerns about some of its provisions.

Among its positive features, the Senate bill would require disclosure of the amounts requested, authorized and appropriated for the National Intelligence Program (Section 107). It would further mandate consideration of disclosure of the agency budgets of each of the 16 elements of the intelligence community, as recommended by the 9-11 Commission.

Declassification of the intelligence budget is the sine qua non for establishing a sensible national security classification system.

Some other provisions of the Senate bill are controversial, and should require referral of the bill to the Senate Judiciary Committee for further deliberation, argued Kate Martin and Brittany Benowitz of the Center for National Security Studies in a January 11, 2007 assessment.

The bill, they wrote, “would permit the Intelligence Community to access vast troves of personal information on Americans collected by the FBI or other agencies while limiting application of the Privacy Act to that information (section 310); it would limit application of the Privacy Act to records maintained by the Office of the Director of National Intelligence (section 416); it would exempt enormous numbers of files of the Office of the Director of National Intelligence from even the search and review requirements of the FOIA (section 411); [and] it would permit NSA and CIA protective personnel to make warrantless arrests for offenses not committed in their presence (section 424 and 432).”

Last week the bill was referred to the Senate Armed Services Committee for a ten-day period.

The safe performance of parachute entries into hostile territory by Special Forces personnel is addressed in a U.S. Army manual (large pdf).

Military free-fall (MFF) parachute operations “are used when enemy air defense systems, terrain restrictions, or politically sensitive environments prevent low altitude penetration or when mission needs require a clandestine insertion.”

“This field manual presents a series of concise, proven techniques and guidelines that are essential to safe, successful MFF operations.”

See “Special Forces Military Free-Fall Operations,” Field Manual FM 3-05.211, April 2005 (295 pages, 14 MB).

The unclassified Special Forces manual has not been approved for public release, but a copy was obtained by Secrecy News.

Before posting the document on the Federation of American Scientists web site, we turned to M, a friendly parachutist who is attuned to national security classification concerns, and asked whether there was any reason not to do so.

“I reviewed the manual carefully and consulted with a couple of people and I didn’t see anything that would suggest that any portion of the report requires special protection,” he said.

“Civil Affairs” has recently been elevated to a branch of the U.S. Army by order of Army Secretary Francis J. Harvey on January 12, 2007.

The role of civil affairs is to support “the interaction of military forces with the civilian populace [in or around the battlefield] to facilitate military operations and consolidate operational objectives.”

According to an Army manual on civil affairs operations (pdf), “A supportive civilian population can provide resources and information that facilitate friendly operations. It can also provide a positive climate for the military and diplomatic activity a nation pursues to achieve foreign policy objectives.”

Conversely, “A hostile civilian population threatens the immediate operations of deployed friendly forces and can often undermine public support at home for the policy objectives of the United States and its allies. When executed properly, civil-military operations can reduce friction between the civilian population and the military force.”

The Army manual has not been approved for public release, but a copy was obtained by Secrecy News.

See “Civil Affairs Operations,” U.S. Army Field Manual FM 3-05.40, September 2006 (184 pages, 4 MB PDF).

In the latest ruling (pdf) in the prosecution of two former officials of the American Israel Public Affairs Committee for allegedly mishandling classified information, Judge T.S. Ellis III said that press leaks regarding the case did not constitute a violation of court rules because the leaks apparently derived from law enforcement sources and not from a sealed grand jury proceeding. On January 26, he rejected a defense motion for a hearing on the leaks.

Legal aspects of the conflicts between freedom of the press and national security secrecy are freshly examined in a study by University of Chicago Professor Geoffrey R. Stone and colleagues for the First Amendment Center. See “Government Secrecy vs. Freedom of the Press” (pdf), December 2006.

And some recent scraps from the Congressional Research Service include “Unmanned Vehicles for U.S. Naval Forces: Background and Issues for Congress” (pdf), updated October 25, 2006, and “Privatization and the Federal Government: An Introduction” (pdf), December 28, 2006.

A new U.S. Army Field Manual is intended to advance the development and use of open source intelligence (OSINT), which is intelligence that is derived from publicly available data legally obtained.

“The value of publicly available information as a source of intelligence has… often been overlooked in Army intelligence operations. This manual (pdf) provides a catalyst for renewing the Army’s awareness of the value of open sources; establishing a common understanding of OSINT; and developing systematic approaches to collection, processing, and analysis of publicly available information.”

The growing military appreciation of open source intelligence arises from the ever-increasing quality of public sources and the evident limitations of traditional classified approaches.

“Open source research is the most effective means of retrieving authoritative and detailed information on the terrain, weather, and civil considerations as well as external variables that affect or influence the operational environment,” the manual states.

Yet “our reliance on classified databases… has… often left our soldiers uninformed and ill-prepared to capitalize on the huge reservoir of unclassified information available from open sources.”

OSINT is naturally not the solution to all problems or without limitations of its own, the manual says.

“More than any other intelligence discipline, the OSINT discipline could unintentionally provide indicators of US military operations [to hostile observers].”

Furthermore, “Deception and bias are of particular concern in OSINT operations. Unlike other disciplines, OSINT operations do not normally collect information by direct observation of activities and conditions within the area of interest.”

Characteristically, perhaps, the new Army manual on OSINT is marked “for official use only” and it has not been approved for public release. As such, it would not have qualified as an “open source.” Until now.

A copy of the manual was obtained by Secrecy News and posted on the Federation of American Scientists web site.

See “Open Source Intelligence,” U.S. Army Field Manual Interim FMI 2-22.9, December 2006 (161 pages, 2 MB PDF).

The management of open source intelligence activities across the U.S. intelligence community was addressed in a July 2006 Intelligence Community Directive (ICD 301) on the National Open Source Enterprise (pdf).

Several recent Intelligence Community Directives (ICDs) were released by the Office of the Director of National Intelligence on January 22 in response to a Freedom of Information Act request from the Federation of American Scientists.

Though mostly dry and uninformative, they are nevertheless important as expressions of bureaucratic definition and control.

The newly released directives include (all pdf):

ICD 105, “Acquisition,” August 15, 2006

ICD 300, “Management, Integration, and Oversight of Intelligence Collection and Covert Action,” October 3, 2006

ICD 602, “Human Capital — Intelligence Community Critical Pay Positions,” August 16, 2006

ICD 900, “Mission Management,”December 21, 2006

These and other publicly disclosed Intelligence Community Directives are available here.

U.S. special operations forces typically make use of some of the most sophisticated military and intelligence gear available. But sometimes a “no tech” solution is the right one.

So, for example, Special Forces “may find themselves involved in operations in rural or remote environments… using pack animals,” including horses, donkeys and mules.

“Pack animal operations are ideally suited for, but not limited to, conducting various missions in high mountain terrain, deserts, and dense jungle terrain.”

An Army Special Forces manual (large pdf) provides instruction and doctrinal guidance for using pack animals in training and combat missions.

“This manual provides the techniques of animal pack transport and for organizing and operating pack animal units. It captures some of the expertise and techniques that have been lost in the United States Army over the last 50 years.”

The 225 page manual provides a basic introduction to the characteristics of each of the various pack animals, some rudiments of veterinary care, and miscellaneous lore.

“Mules are intelligent and possess a strong sense of self-preservation. A packer cannot make a mule do something if the mule thinks it will get hurt, no matter how much persuasion is used…. many people confuse this trait with stubbornness.” (p. 2-1)

“Elephants are considered an endangered species and as such should not be used by U.S. military personnel… Elephants are not the easygoing, kind, loving creatures that people believe them to be. They are, of course, not evil either.” (p. 10-8)

The Special Forces manual has not been approved for public release, but a copy was obtained by Secrecy News.

See “Special Forces Use of Pack Animals,” Field Manual FM 3-05.213, June 2004 (in a very large 16.5 MB PDF file).

The Director of the Congressional Research Service last week issued a revised agency policy on “Interacting with the Media” that warns CRS analysts about the “very real risks” associated with news media contacts and imposes new restrictions on speaking to the press.

“CRS staff must report within 24 hours all on-the-record interactions with any media to their supervisor, including the name of the reporter, media affiliation, date, time, and detailed notes on the matters discussed or to be discussed,” the new policy states (pdf).

“Violations of the media policy will be addressed promptly,” wrote CRS director Daniel P. Mulhollan.

A copy of the CRS policy on “Interacting with the Media” was obtained by Secrecy News.

The new policy “will obviously have a chilling effect on staff,” said one CRS analyst on a not-for-attribution basis. “That’s what it is intended to do.”

The CRS has gained increasing prominence in the news media in recent years. The number of citations to CRS in the Nexis news database rose from 2,076 in 2004 to 3,101 in 2005 to 4,179 in 2006.

This growing public attention is a source of anxiety for CRS management, which fears that the agency may come to be perceived as having an institutional agenda of its own or that its impartiality will be questioned by members of Congress.

“We have all seen the way in which portions of products can be misquoted and taken out of context, potentially damaging the image of our colleagues and the Service in the eyes of some of our clients,” CRS director Mulhollan wrote.

“To assist CRS in refuting misstatements or misquotations, staff must keep detailed notes of media interactions and report promptly to their supervisor,” he instructed.

But the relative impartiality of the CRS and its analysts’ quasi-official standing make it an attractive resource for reporters covering all kinds of domestic and foreign policy matters.

The new restrictions on CRS contacts with the press will therefore be a blow first of all to reporters and others who rely on CRS expertise.

Over time, however, the new policy may also backfire against CRS itself. If analysts cannot publish or freely comment on subjects of their expertise, some will conclude that CRS is not a hospitable venue for their professional development and they will go elsewhere.

“From my personal perspective CRS is being managed without respect and trust for the staff,” said Dennis M. Roth, president of Congressional Research Employees Association, the CRS employees’ union, in July 27, 2006 testimony (pdf) to the House Administration Committee.

“Leadership can be accomplished in many ways, and we believe that CRS currently practices a style inappropriate, damaging, and destructive for a professional service organization…. It is autocratic, centralized, and secretive,” he said.

In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine last month in a motion to dismiss the libel suit brought against it by Steven J. Hatfill, the former Army scientist who said he was erroneously linked by the Times to the 2001 anthrax attacks.

The case was dismissed on January 12, 2007 on other grounds (to be spelled out in an opinion that has not yet been published).

But in a sealed motion (pdf) on December 29, the New York Times argued that the classification restrictions imposed on the case were tantamount to an assertion of the state secrets privilege. Times attorneys cited the case law on state secrets to support their argument that the case should be dismissed.

The “state secrets” doctrine, they said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because the Times has been denied access to such evidence, specifically documents and testimony concerning the work done by plaintiff [Hatfill] on classified government projects relating to bioweapons, including anthrax.”

“It would be manifestly unjust and improper to require the Times to defend against the claims being advanced by Steven Hatfill without affording it access to critical information concerning his own activities that could serve to defeat those claims.”

“The government has not formally intervened in this case to assert the [state secrets] privilege, as it has typically done in analogous cases,” the Times acknowledged in an accompanying memorandum of law (pdf).

“Nevertheless, … it is now evident that the government has in fact invoked the privilege through ex parte evidentiary submissions by DOD, the Department of Justice and the CIA establishing that information concerning projects worked on by plaintiff and his colleagues were properly ‘classified’,” the Times’ attorneys claimed.

A redacted copy of the December 29 New York Times Memorandum of Law in Support of Defendant’s Motion for an Order Dismissing the Complaint Under the “State Secrets” Doctrine was obtained by Secrecy News.

Attorneys for Dr. Hatfill filed a sealed response on January 12 in opposition to the motion for dismissal on state secrets grounds. A redacted copy of their opposition was not immediately available.

The use of the national security classification system to conceal “earmarks” — targeted allocations of funds — that are self-serving or corrupt would be eliminated if a proposal by Senators Dianne Feinstein (D-CA) and Jay Rockefeller (D-WV) becomes law.

The proposal was offered as an amendment to Senate bill S. 1, the Legislative Transparency and Accountability Act of 2007, which is pending in the Senate.

“The amendment prohibits any bill authorization or appropriation from containing an earmark in the classified portion of that bill or accompanying a report, unless there is unclassified language that describes in general terms the nature of the earmark. The amount of the earmark is disclosed and the sponsor of the earmark is identified,” Sen. Feinstein explained.

“This amendment would provide the public with the assurance that the classified parts of the defense and intelligence budgets–which are indeed large–are subjected to the same scrutiny and openness as everything else.”

“The need for the amendment was made clear by the actions of former Congressman Duke Cunningham. According to a report by the House Intelligence Committee, Cunningham was able to enact a staggering $70 million to $80 million in classified earmarks over a 5-year period. These earmarks benefited his business partners and were not known to most Members of the Congress or the public,” Sen. Feinstein said on January 16.

The fate of the Legislative Transparency bill was uncertain after Republican Senators objected to a Democratic refusal to consider an amendment concerning a line-item veto.