37 Leak Cases Were Reported to Dept of Justice in 2016
Executive branch agencies submitted 37 “crimes reports” to the Department of Justice last year regarding leaks of classified information.
In response to a Freedom of Information Act request, wrote Patricia Matthews of the DOJ National Security Division, “We have conducted a search of the Counterintelligence and Export Control Section. A records search of that Section indicates that 37 crime reports concerning unauthorized disclosures of classified information were received by DOJ in CY 2016.” (The specific nature of the leaks and the government’s responses to them were not disclosed.)
The 2016 figure is double the number of suspected criminal leak cases reported in 2015. But it is consistent with the average number of leak cases from 2009 to 2015, which is 39.7.
What makes the latest number of reported leaks interesting is not that it deviates sharply from past experience but that it does not.
Evidently there is a baseline of leakiness that persists even in the face of strenuous official efforts to combat leaks.
President Obama issued executive order 13587 in 2011 to improve safeguarding of classified information. He issued a National Insider Threat Policy in 2012, which was intended in part to deter unauthorized disclosures of classified information. The Obama Administration famously prosecuted more suspected leakers than ever before. But after all of that, the annual number of suspected criminal leaks is stable and undiminished.
Among other things, this has implications for security policy. Since leaks continue despite government actions to suppress them, prudent security officers will limit their vulnerability by using classification more selectively, by further reducing the security-cleared population, and by aiming for resilience to unwanted disclosure rather than for perfect secrecy.
“There’s been major crimes committed,” House Intelligence Committee chairman Rep. Devin Nunes (R-CA) told reporters yesterday, referring to the latest leaks in the Trump Administration. “What I’m concerned about is no one is focusing on major leaks that have occurred here… We can’t run a government like this. A government can’t function with massive leaks at the highest level.”
But the record of the past decade indicates that the government has no alternative but to operate in a leaky environment.
A stronger argument could even be made that some irreducible level of leakiness serves a salutary purpose as a check against misconduct. A perfectly reliable and altogether leak-proof secrecy system would present an irresistibly dangerous temptation to irresponsible political leaders.
Army Intelligence: A Look to the Future
Collection of more intelligence-related information does not necessarily translate into better intelligence.
“Because of limitations associated with human cognition, and because much of the information obtained in war is contradictory or false, more information will not equate to better understanding.”
What makes that sensible observation doubly interesting is that it was written by Lt.Gen. H.R. McMaster, the newly designated National Security Advisor to President Trump.
It appears in the Foreword to the updated U.S. Army Functional Concept for Intelligence, 2020-2040, TRADOC Pamphlet, 525-2-1, February 2017.
The Army document, a somewhat speculative and aspirational look into the future of Army intelligence, presents a stark view of future threats, projected intelligence gaps, and directions forward. Some excerpts:
“International conditions will change more rapidly based on the increased velocity and momentum of human interactions and events. Technologies will become universally available and create a potential to overmatch U.S. capabilities. Weapons of mass destruction (WMD) proliferation among state and nonstate actors will pose an increased threat to U.S. security interests. Advanced cyberspace and counter-space capabilities will spread to state and nonstate actors, allowing them to protect their access and disrupt or deny access to others. Operations will occur among populations in cities and complex terrain.”
“Geospatial databases support the understanding of existing infrastructure and potential entry points but do not fully address the complexities of large urban centers, such as megacities. Country studies establish an overview, but city studies and transnational studies are lacking. While infrastructure and order of battle information remain valid, understanding networked and transnational enemy organizations, social media, and biometric identity information have equal or greater importance in some missions. Commanders must also understand critical infrastructure, assets, and terrain in the cyberspace domain. Nonstate ideological movements or political competition may drive national and subnational change more rapidly than conventional analysis may indicate. Proliferation of technology and WMD between states and nonstate actors disrupts normalcy faster than country studies can update.”
“Current information collection techniques are not robust enough to understand the rapidly changing urban environment. The speed of human interaction is greatest in a large urban environment. Operations in urban environments are not traditional adversary centric problems — the environment itself offers significant challenges to a conventional force and provides ample concealment to the enemy. Social networking, flows, infrastructure layering, radical variations by neighborhood, multiple authority structures, and others, complicate information collection against populations, infrastructure, and physical environment signatures. Government, religious, economic, and ideological actors use social and traditional public media to influence the population. Understanding the environment requires collecting and exploiting relevant signatures, many of which are either as of yet undiscovered, or lack sufficient technical exploitation to be useful.”
“Population and structural and signal density in urban environments produce physical and virtual clutter that reduces the effectiveness of intelligence collection, and complicates target acquisition. Market saturation of cell phones and other web-enabled devices produce a signal dense environment which complicates target acquisition and SIGINT collection…. Increasing proliferation of personal mobile communications is making connectedness more robust at the personal level adding to the difficulty of identifying relationships. The density of information and communications technologies may slow our ability to identify actionable intelligence.”
Meanwhile, the document says, the Army should anticipate “budget and force reductions.”
“Fiscal constraints demand near-term solutions that preserve the balance of readiness, force structure, and modernization necessary to meet the demands of the national defense strategy now, while setting the stage to begin evolving the force in the mid-term (2020-2030) and bringing innovative solutions to fruition to meet the challenges of the far-term (2030-2040).”
Domestically, “Legal constraints govern intelligence support to operations conducted within the homeland, specifically Defense Support to Civil Authorities (DSCA) and homeland defense. The U.S. is a litigious environment within which the Army operates; intelligence leaders must understand the role legal limitations and authorities play in shaping intelligence support.”
Leaks and the Law, & More from CRS
There is no law that categorically prohibits all leaks of classified (or unclassified) information. Instead, there is a patchwork of statutes that outlaw some unauthorized disclosures under some circumstances.
The various statutes that have been used to punish leaks of classified information are surveyed in a new publication from the Congressional Research Service. See The Law and Leaks to the Press, CRS Legal Sidebar, February 22, 2017.
“Not every leak to the press is a federal crime,” CRS notes. Even when a disclosure is a potential crime, the underlying statutes are not self-activating or self-enforcing. Investigators and prosecutors retain considerable discretion about how to proceed.
I discussed some of these issues lately in the Washington Post. See “President Trump’s war on leaks, explained” by Aaron Blake, February 16.
Other noteworthy new or updated reports from the Congressional Research Service include the following.
A New Authorization for Use of Military Force Against the Islamic State: Issues and Current Proposals, updated February 21, 2017
Iran’s Nuclear Program: Tehran’s Compliance with International Obligations, updated February 23, 2017
Federal Building and Facility Security: Frequently Asked Questions, updated February 22, 2017
U.S. Secret Service: Selected Issues and Executive and Congressional Responses, updated February 22, 2017
“Dear Colleague” Letters in the House of Representatives: Past Practices and Issues for Congress, February 22, 2017
Health Care-Related Expiring Provisions of the 115th Congress, First Session, updated February 22, 2017
El Salvador: Background and U.S. Relations, updated February 23, 2017
The North American Free Trade Agreement (NAFTA), updated February 22, 2017
Geospatial Engineering in the US Army
The discipline of geospatial engineering and its role in U.S. military operations are described in a newly updated U.S. Army publication.
“Geospatial engineering is an art and a science that pertains to the generation, management, analysis, and dissemination of geospatial information that is accurately referenced to a precise location on the earth and is used in offense, defense, stability, or defense support of civil authorities tasks.”
“Geospatial engineers aid in the analysis of physical and cultural mapping and other activities that significantly contribute to anticipating, estimating, and warning of possible future events. Providing geospatial information that is timely, accurate, and relevant is a critical enabler throughout the operations process for developing shared situational awareness, improving the understanding of capabilities and limitations for friendly forces and the adversary, and highlighting other conditions of the operational environment that are required for mission command.”
“Today, geospatial engineering leverages finer temporal, spatial, and spectral resolutions from additional sensors and platforms that allow increased volumes and more complex data. New methods and technologies provide additional utility and capability and the ability to work effectively and efficiently within a broad pool of partners and allies.”
See Geospatial Engineering, Army Techniques Publication (ATP) 3-34.80, February 22, 2017.
Two Views of the Open Skies Treaty
Russian surveillance of military facilities under the Open Skies Treaty is problematic for the security of U.S. nuclear forces, a U.S. Air Force general told Congress last year. No, it is not, a U.S. Navy admiral said.
Those two disparate views were offered in response to a question for the record from Rep. Mike Coffman (R-CO) following a hearing of the House Armed Services Committee last year.
“Several Defense officials have expressed concerns about Russia’s intent to use advanced digital sensors to collect imagery under the Open Skies Treaty,” Rep. Coffman said. “Is this a significant concern for our nuclear forces?”
“Intelligence collection against our nuclear forces is always a concern,” replied Gen. Robin Rand, commander of the U.S. Air Force Global Strike Command.
“The imaging system to be placed on the Tu-214 and Tu-154 is already in use on Russian aircraft flying Open Skies missions over Europe. The new system possesses greater range and an advanced digital processing capability, providing a significant increase in the number of images that can be collected. This digital capability, through post mission image refinement of raw image data, could potentially enable the Russians to violate the treaty by keeping the raw image data and later using advanced digital image enhancement techniques to refine resolution beyond that allowed in the treaty,” Gen. Rand wrote (at p. 105).
But the same question from Rep. Coffman about the potential threat from improved Russian sensors elicited a substantially different response from VADM Terry Benedict, director of Navy Strategic Systems Programs.
“I do not believe this is a significant concern to our nuclear forces. The resolution of Open Skies imagery is similar to that available in commercial satellite imagery,” VADM Benedict wrote (at p. 106).
Moreover, he added, “All State Parties have the right under the Treaty to certify new sensors and aircraft. The United States and several of our Allies are in various stages of acquiring new digital sensors. The information Russia gleans from Open Skies is of only incremental value in addition to Russia’s other means of intelligence gathering.”
The two responses serve to illustrate the inconvenient reality that many questions of national security policy do not have simple, unequivocal answers. Views that would seem to be authoritative may be contradicted by other assessments that are equally authoritative. Reconciling the contradiction, or overcoming it, requires further investigation. And even that may not be sufficient.
Rep. Coffman’s exchange with Gen. Rand and VADM Benedict appeared in a hearing volume published last month on Fiscal Year 2017 Budget Request for Department of Defense Nuclear Forces, March 2, 2016, which also contains material of interest on nuclear weapons modernization programs, projected costs, and other policy matters.
Related issues were also discussed in another House Armed Services Committee hearing volume that was published last month. See U.S. Strategic Forces Posture, February 24, 2016.
A Primer on the European Union, and More from CRS
How does the European Union work? Does the EU Have a foreign policy? What is the Schengen Area?
I don’t know, but Kristin Archick of the Congressional Research Service does. See her newly updated report on The European Union: Questions and Answers, updated February 21, 2017.
Other noteworthy new or updated publications from the Congressional Research Service include the following.
Nonstrategic Nuclear Weapons, updated February 21, 2017
U.S. Sanctions and Russia’s Economy, updated February 17, 2017
Iran: Politics, Human Rights, and U.S. Policy, updated February 17, 2017
Bahrain: Reform, Security, and U.S. Policy, updated February 14, 2017
Sanctuary Jurisdictions: Congressional Action and President Trump’s Interior Enforcement Executive Order, CRS Insight, February 15, 2017
The DACA and DAPA Deferred Action Initiatives: Frequently Asked Questions, February 15, 2017
Challenges for U.S. Policymakers in Latin America and the Caribbean, CRS Insight, February 16, 2017
U.S. Restrictions on Relations with Burma, updated February 7, 2017
India’s Natural Gas: A Small Part of the Energy Mix, February 13, 2017
Japan-U.S. Relations: Issues for Congress, updated February 16, 2017
Current Ballistic Missile Defense (BMD) Issues, CRS Insight, February 21, 2017
The Essential Judge Gorsuch, & More from CRS
U.S. Supreme Court nominee Judge Neil Gorsuch is the author of more than 800 legal opinions.
“This provides an enormous–and perhaps unwieldy–body of law for those interested in learning about Judge Gorsuch’s approach to judging,” the Congressional Research Service says.
To make it easier to assess that record, CRS has produced a listing of notable rulings by Judge Gorsuch with links to the underlying decisions, broken down by category of law (civil rights, constitutional law, capital punishment, etc.). “These categories represent fields of law where Judge Gorsuch could, if confirmed, influence the High Court’s approach.”
See The Essential Neil Gorsuch Reader: What Judge Gorsuch Cases Should You Read?, CRS Legal Sidebar, February 13, 2017.
Other noteworthy new or updated publications from the Congressional Research Service include the following:
Immigration Officers’ Authority to Apprehend and Remove Aliens: Questions & Answers in Brief, CRS Legal Sidebar, February 13, 2017
Plan to Restrict Federal Grants to “Sanctuary Jurisdictions” Raises Legal Questions, CRS Legal Sidebar, February 14, 2017
Iran Nuclear Agreement, updated February 10, 2017
U.S. Strategic Nuclear Forces: Background, Developments, and Issues, updated February 10, 2017
China-U.S. Trade Issues, updated February 9, 2017
“Fiscal Space” and the Federal Budget, CRS Insight, February 14, 2017
The Federal Budget Deficit and the Business Cycle, CRS Insight, February 14, 2017
Congressional Gold Medals, 1776-2016, updated February 13, 2017
More Low-Cost Transatlantic Flights May Shake Airline Industry, CRS Insight, February 10, 2017
The average age of members of the 115th Congress is “among the oldest in U.S. history,” according to a new CRS survey. See Membership of the 115th Congress: A Profile, February 10, 2017.
Withdrawal from International Agreements, & More from CRS
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What is Manufacturing?, and More from CRS
“What is Manufacturing?” is not the title of a lost work of Heidegger, but of a new report from the Congressional Research Service. The CRS report delves into the shifting meaning of “manufacturing” and the implications for economic analysis.
“Changes in the structure of manufacturing make it difficult to design government policies that support manufacturing-related value added and employment in the United States. Many federal laws adopted with the goal of supporting manufacturing do not take into account the increasingly blurred lines between manufacturing and other types of economic activity,” the report said.
See What Is Manufacturing? Why Does the Definition Matter?, February 6, 2017.
Other noteworthy new and updated reports from the Congressional Research Service include the following.
Gun Control, Mental Incompetency, and Social Security Administration Final Rule, February 2, 2017
Army Corps Easement Process and Dakota Access Pipeline Easement Status, CRS Insight, February 2, 2017
EPA’s and BLM’s Methane Rules, CRS Insight, February 3, 2017
Supreme Court Appointment Process: President’s Selection of a Nominee, updated February 6, 2017
The Islamic State and U.S. Policy, updated February 2, 2017
Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, updated February 3, 2017
Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, updated February 2, 2017
The United States Withdraws from the TPP, CRS Insight, February 3, 2017
“El Chapo” Guzmán’s Extradition: What’s Next for U.S.-Mexican Security Cooperation?, CRS Insight, updated February 3, 2017
Cabo Verde: Background and U.S. Relations, February 6, 2017
Cuba Sanctions: Legislative Restrictions Limiting the Normalization of Relations, updated February 3, 2017
The Pacific Islands: Policy Issues, February 2, 2017
Asian Infrastructure Investment Bank (AIIB), February 3, 2017
Why Did March 2016 U.N. Sanctions Not Curb China’s Imports of Coal from North Korea?, CRS Insight, February 3, 2017
Spy Satellite Agency: Winter is Here
The National Reconnaissance Office (NRO) has modified its classification policies in favor of heightened secrecy, withholding budget records that were previously considered releasable and redesignating certain unclassified budget information as classified.
NRO is the U.S. intelligence agency that builds and operates the nation’s intelligence satellites.
Since 2006, and for most of the past decade, the NRO has released unclassified portions of its budget justification documents in response to requests under the Freedom of Information Act.
But in a January 23, 2017 letter, the NRO said it would no longer release that unclassified budget information, which it now deems classified.
“The NRO has determined that a series of unclassified items in the [FY 2016 budget justification] document in the aggregate reveals associations or relationships not otherwise revealed in the unclassified items individually; thus, in the aggregate, this information meets the standard for classification under E.O. 13526 Section 1.7(e),” wrote Patricia B. Cameresi, NRO FOIA Public Liaison, in her FOIA denial letter.
As a purely technical matter, the latter claim is probably a misreading of the Executive Order, which states in Section 1.7(e):
“Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information.”
Properly understood, the fact that various unclassified items reveal additional information in the aggregate does not mean that those items meet the standard for classification. That requires a separate determination which, in any case, is discretionary. Classifying compilations of unclassified budget information is a threshold which was never crossed in the past and which has not been explicitly justified by NRO here.
The NRO also invoked a statutory exemption in 10 USC 424, which says that NRO (along with DIA and NGA) cannot be compelled to disclose “any function” at all.
The upshot is that the NRO is abandoning the budget disclosure practices of the past decade, and is positioning itself to withhold anything and everything that it prefers not to release.
An administrative appeal of the NRO FOIA denial was filed yesterday.
The Gorsuch Nomination, and More from CRS
“Predicting how a nominee to the Supreme Court could affect the Court’s jurisprudence is notably difficult,” according to the Congressional Research Service. But see Neil Gorsuch’s Nomination to the Supreme Court: Initial Observations, CRS Legal Sidebar, February 1, 2017.
Other new and updated reports from the Congressional Research Service include the following.
Supreme Court Appointment Process: President’s Selection of a Nominee, updated January 27, 2017
U.S. District Court Vacancies at the Beginning and End of the Obama Presidency: Overview and Comparative Analysis, CRS Insight, January 31, 2017
Import Tariff or Border Tax: What is the Difference and Why Does It Matter?, CRS Legal Sidebar, J anuary 30, 2017
U.S. Crude Oil Exports to International Destinations, CRS Insight, January 30, 2017
Endangered Species Act (ESA): The Exemption Process, January 27, 2017
Trump Administration Changes to the National Security Council: Frequently Asked Questions, CRS Insight, January 30, 2017
Russian Compliance with the Intermediate Range Nuclear Forces (INF) Treaty: Background and Issues for Congress, updated January 27, 2017
Mexican-U.S. Relations: Increased Tensions, CRS Insight, February 1, 2017
Barriers Along the U.S. Borders: Key Authorities and Requirements, updated January 27, 2017
Under Pressure: Long Duration Undersea Research
“The Office of Naval Research is conducting groundbreaking research into the dangers of working for prolonged periods of time in extreme high and low pressure environments.”
Why? In part, it reflects “the increased operational focus being placed on undersea clandestine operations,” said Rear Adm. Mathias W. Winter in newly published answers to questions for the record from a February 2016 hearing.
“The missions include deep dives to work on the ocean floor, clandestine transits in cold, dark waters, and long durations in the confines of the submarine. The Undersea Medicine Program comprises the science and technology efforts to overcome human shortfalls in operating in this extreme environment,” he told the House Armed Services Committee.
See DoD FY2017 Science and Technology Programs: Defense Innovation to Create the Future Military Force, House Armed Services Committee hearing, February 24, 2016.