Foreign scientists working in the U.S. are a vital part of the U.S. scientific research enterprise, a new report from the JASON scientific advisory panel said, and this country could hardly do without them. Yet in some cases they pose a challenge to the integrity of U.S. research programs.

“In 2019, eight Americans were awarded Nobel Prizes – half were foreign born,” the JASON report said. “Today, foreign nationals account for the majority of graduate students in many technology fields, including electrical, civil, mechanical, industrial, chemical, and petroleum engineering. They also dominate in fields including computer science and economics, and some universities’ graduate programs likely could not maintain their high level of excellence without foreign students.”

But some foreign scientists — often, but not only, from China — violate U.S. norms of scientific ethics by improperly sharing sensitive research information and technology without authorization.

“Anecdotes abound of foreign scholars in research groups passing on sensitive information, and some JASON members had experienced this in their own research groups,” the report said. On the other hand, “some examples of what has been interpreted by the intelligence community and law enforcement as theft by foreign researchers actually appears to be the collegial sharing of academic work.”

Although the magnitude of unambiguously unethical activity is not clearly known, “there are enough verified instances to warrant concern. . . These actions pose a threat to the U.S. fundamental research enterprise,” the JASONs said. See Fundamental Research Security, December 2019.

In this case, however, the proper response is not greater secrecy but greater transparency, the JASON report said.

“It is neither feasible nor desirable to control areas of fundamental research beyond the mechanisms put in place by [the 1985 National Security Decision Directive] NSDD-189” which held that unclassified basic scientific research should be otherwise unrestricted. “It is not possible to draw boundaries around broad fields of fundamental research and define what is included and what is excluded (government controlled) in that discipline of inquiry,” the JASONs said.

Instead, they recommended, the concept of research integrity needs to be expanded to require full disclosure of all affiliations and personal commitments — such as ties to foreign military or security organizations.

“A failure to make the proper disclosure must then be treated as a violation of research integrity and should be investigated and adjudicated” just like plagiarism or falsification of data. Increased clarity and explicitness regarding the boundaries of permissible sharing of unpublished research information is also needed.

Actual theft or espionage is of course punishable by law. But as a general principle, foreign scientists who immigrate to the United States should be treated like any other citizen, the JASONs wrote, and they “should be judged on their personal actions and not by profiling based on the actions of the government and political institutions of their home country.”

A common understanding of the foreign threat to fundamental research has been hampered by secrecy and miscommunication between academic institutions and U.S. intelligence officials, the JASONs found.

Intelligence briefings “have been met with disbelief and derision” by some academic audiences who doubted the legitimacy of classification barriers to full disclosure. The IC briefers in turn “may feel distrusted and dismissed by those they believe they are trying to help.”

The JASONs recommended that the National Science Foundation facilitate more effective communications between the academic community and intelligence and law enforcement agencies, “including encouraging the declassification of information related to foreign influence in fundamental research.” (More from NSF, Science, Nature, C&EN)

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Unlike the JASONs, a recent Senate staff report suggested that more secrecy might be the answer to foreign misappropriation of U.S. research activities. “The administration should consider updating NSDD-189 and implement additional, limited restrictions on U.S. government funded fundamental research.” See Threats to the U.S. Research Enterprise: China’s Talent Recruitment Plans, staff report, Senate Committee on Homeland Security and Governmental Affairs, November 22, 2019.

The JASONs specifically rejected this approach, arguing that it was not at all practical and would in fact be counterproductive.

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The congressional intelligence committees have recognized the disconnect between the IC and academia that was described by the JASONs.

The committees are “aware that academia is not always kept apprised by the interagency of a complete picture of potential activities and threats in the research community, such as improper technology transfer, intellectual property theft, and cyber-attacks directly attributed to nation-state governments,” said a new statement on the FY 2018, 2019 and 2020 intelligence authorization act which was recently adopted in the FY2020 defense authorization bill.

The new intelligence legislation therefore “include measures to promote increased information sharing across the interagency and with academia,” the committee statement said.

Among those measures is a requirement for a new unclassified “report listing Chinese and Russian academic institutions that have a history of improper technology transfer, intellectual property theft, cyber espionage, or operate under the direction of their respective armed forces or intelligence agencies.”

Corruption in the executive branch diminishes the ability of federal agencies to preserve secrecy, wrote a then-21 year old named Carter Page in 1993 when he was a midshipman at the U.S. Naval Academy. See Balancing Congressional Needs for Classified Information: A Case Study of the Strategic Defense Initiative by Carter W. Page, May 17, 1993.

More than two and a half decades later, Page’s own experience as an improper target of government surveillance tends to prove his thesis.

A series of FBI applications under the Foreign Intelligence Surveillance Act (FISA) identified Page, a former Trump adviser who had contacts with Russian government officials, as a purported agent of a foreign power. Those FBI applications were declassified and disclosed last year — the first time such documents had ever been made public — following indications that they were based on erroneous claims. Corruption, as Page had written, led to an erosion of longstanding secrecy practices.

Last week, the Department of Justice Inspector General confirmed that the Page surveillance applications were indeed defective.

“We identified at least 17 significant errors or omissions in the Carter Page FISA applications,” wrote Inspector General Michael Horowitz. The omissions included exculpatory information concerning Page that had been improperly altered by an FBI attorney.

The fact that “so many basic and fundamental errors were made” in the Carter Page case has called into question the management of the entire FISA process, Inspector General Horowitz wrote, casting a new spotlight on FISA policy and practice.

“Secrecy is an important element of power,” wrote the young midshipman Page in his 1993 report on congressional access to classified information. Official secrecy practices, he contended, are determined more by political currents than through rational or legal argumentation.

“While the sheer forces of law may be felt to some extent within this struggle, the final outcome is most often one which is based on politics,” he wrote.

“Corruption may decrease an executive’s claim to information,” he argued, particularly since “Congress is much less likely to request secret information from federal agencies which have proven themselves to run in a veracious [i.e. truthful] manner.”

Mr. Page said via email that his 1993 Naval Academy report was “inspired in significant part by prior work with Senator [Daniel Patrick] Moynihan,” whom he had served as an aide.

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The Department of Defense must explain by early next year how it is going to meet its obligations to declassify a growing backlog of classified records, Congress said this week.

A provision (sect. 1759) in the new House-Senate conference version of the FY2020 national defense authorization act requires the Pentagon to prepare a report including:

*     a plan to achieve legally mandated historical declassification requirements and reduce backlogs;

*     a plan to incorporate new technologies, such as artificial intelligence, that would increase productivity and reduce the cost of implementing such a plan;

*     a detailed assessment of the declassified documents released in the past three years along with an estimate of how many will be released in the next three years;

*     other policy and resource options for reducing backlogs of classified documents awaiting declassification.

While the new legislative language is a welcome acknowledgment of a persistent problem, it does not by itself significantly advance a solution. In particular, the legislation does not authorize any new funds for declassification or for development of new declassification technologies, which are not yet mature. Nor does it define an alternative in the event that DoD proves unable to meet its declassification obligations.

In a prior draft adopted by the House of Representatives, the CIA and the State Department would also have been required to prepare similar reports. But those requirements were dropped in the final bill.

“The U.S. government’s system for declassifying and processing historical records has reached a state of crisis,” wrote William Burr of the National Security Archive lately. See “Trapped in the Archives,” Foreign Affairs, November 29, 2019.

Update (October 2021): The required report on Reducing the Backlog in Legally Required Historical Declassification Obligations of the Department of Defense was released in October 2021.

Congress has directed the Department of Defense to reach an “arrangement with the JASON scientific advisory group to conduct national security studies and analyses.”

Last spring DoD officials sought to let the existing contract with the JASONs lapse, leaving the panel without a sponsor and threatening its continued viability. The new legislation rejects that move, although it anticipates that the JASON contract will now be managed instead by the DoD Under Secretary for Acquisition and Sustainment instead of by Defense Research and Engineering.

“The conferees expect the [new] arrangement or contract to be structured . . . similar to previous contracts for JASON research studies,” the NDAA conference report said.

The JASON panel is widely esteemed as a source of independent scientific expertise that is relatively free of institutional bias. Its reports are often able to provide insight into challenging technological problems of various kinds.

The FY2020 defense authorization bill calls for new JASON assessments of electronic warfare programs, and of options for replacement of the W78 warhead.

In 2019 the JASONs performed studies on Pit Aging (NNSA), Bio Threats (DOE), and Fundamental Research Security (NSF), among others.

In a challenge to Pentagon secrecy, Congress has told the Secretary of Defense and the Director of National Intelligence to prepare an unclassified report on the nuclear weapons programs of the United States, Russia and China.

The requirement was included in the new House-Senate conference version of the FY2020 defense authorization act (sect. 1676).

The mandated report must include an assessment of “the current and planned nuclear systems” of the three nations, including “research and development timelines, deployment timelines, and force size.”

The Pentagon has been reluctant to issue its own unclassified estimates of foreign nuclear programs. Earlier this year DoD even refused to declassify the current size of the US nuclear stockpile, though it had previously done so every year since 2010.

The newly required report must be produced in unclassified form, Congress directed, though it may include a classified annex.

“Across the Department of Defense, basic information is becoming harder to find,” wrote Jason Paladino of the Project on Government Oversight in “The Pentagon’s War on Transparency,” December 5, 2019.

Congress should require the Director of National Intelligence to make open source intelligence more widely available, the U.S.-China Economic and Security Review Commission recommended in its latest annual report.

Open source intelligence refers to information of intelligence value that is openly published and can be freely gathered without resort to clandestine methods. Such material, and the analysis based on it, can usually be produced on an unclassified basis.

But in practice, it is often tightly held. The U.S.-China Commission, which was created by statute in 2000, noted that the U.S. intelligence community had recently curtailed access to open source intelligence reporting even within the government.

Last June, the former OpenSource.gov web portal was “decommissioned.” Its contents were transferred to classified or restricted networks that are mostly inaccessible to those outside the intelligence community.

Congress should therefore direct the DNI to “restore the unclassified Open Source Enterprise website to all of its original functions for U.S. government employees,” the China Commission report said.

Even before the recent decommissioning of OpenSource.gov, most open source intelligence products that were produced by the intelligence community’s Open Source Enterprise were denied to researchers, scholars, and other members of the public who were not government employees or contractors.

That too is a mistake that should be corrected, the Commission said.

“Access to the Open Source Enterprise should also be expanded by making appropriate materials available to U.S. academic and research institutions,” the Commission report said.

Larry M. Wortzel, a China specialist and Commission member, said the growing limitations on open source intelligence are impeding China-related research.

“To work on China using Chinese open source documents, if you are not on [the classified network] JWICS, you need to read Chinese,” Mr. Wortzel told Bill Gertz of the Washington Times, who first reported on the Commission recommendation. See “DNI restricts open source intel,” November 27 (second item).

Government officials say that wider sharing of open source intelligence is not quite as simple or straightforward as it might seem, even aside from legal issues of copyright that may limit publication of foreign materials.

Like other forms of intelligence, open source material is subject to error and can be used for deception. In some cases it may be highly sensitive, as when the underlying information is published unwittingly, or when it offers US policymakers some transient “decision advantage” that could be squandered by wider publication.

But those are exceptional cases, not ordinary ones. More typically, open source intelligence products serve a humble but enormously valuable contextual function. Sometimes, they may offer genuine insight into pressing issues of national security and foreign policy. But even in their most pedestrian form — like the highly popular CIA World Factbook — they can help to inform and enrich policy research and public discourse. So the Commission’s recommendation to Congress seems well-founded.

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A newly updated US Army glossary of military terminology defines open source intelligence as “Relevant information derived from the systematic collection, processing, and analysis of publicly available information in response to known or anticipated intelligence requirements.” See Field Manual (FM) 1-02.1, Operational Terms, November 21, 2019.

Under current law, the President can declare a national emergency — and exercise extraordinary emergency authorities — but the ensuing state of emergency cannot be terminated by Congress without veto-proof majorities in both houses.

A pending bill known as the ARTICLE ONE Act (S. 764) would invert that scenario so that an emergency declared by the President would automatically expire after 30 days unless and until Congress adopted a resolution to approve the declared emergency.

The bill “reclaims certain emergency authorities that Congress has ceded to the President,” according to a Senate report on the bill that was published this week.

The bill is remarkable both because it is an uncommon congressional initiative to limit presidential authority in this area and because it has significant bipartisan support, including 18 Republican cosponsors in the Senate. It was reported out of the Senate Homeland Security and Governmental Affairs Committee by voice vote on July 24.

As of last month, there were 34 national emergencies in effect, the Senate report said, citing data from the Brennan Center for Justice.

In a significant limitation, the proposed congressional review procedures would not apply to national emergencies that are declared under the provisions of the International Emergency Economic Powers Act (IEEPA), which is used to impose economic sanctions on foreign individuals or governments. All but three of the current national emergencies fall in this category.

“This exclusion is intended to preserve the President’s flexibility in deploying economic sanctions as a national security tool,” the Senate report said.

However, legislators added, “To ensure that a President cannot skirt congressional review by invoking IEEPA along with other emergency authority provisions, the bill specifies that any such declared emergency remains subject to the new framework established by the ARTICLE ONE Act.”

Last month, 15 Senators wrote to Senate Majority Leader McConnell and Minority Leader Schumer asking them to schedule a vote on the bill as soon as possible.

“The ARTICLE ONE Act’s proposition is simple but fundamental: Congress cannot continue to cede its powers to another branch, regardless of who is President or which party holds a majority,” the bipartisan group of senators wrote on October 17.

“This bill would take a pretty giant step toward preventing future abuses of emergency authorities and reclaiming some of the power Congress has delegated away to the president over the past 40 years,” tweeted Liza Goitein of the Brennan Center for Justice. “That’s a big deal.”

The Congressional Budget Office said that it anticipated that Congress would approve most future declarations of national emergencies if the bill were enacted, though there might be fewer of them or their duration might be shorter.

Last week, the President renewed for another year the oldest continuing national emergency, pertaining to Iran, which was declared 40 years ago.

Subterranean operations involving the use of tunnels and underground facilities pose growing challenges to the U.S. military, a new Army manual indicates.

“Today, over 10,000 known subterranean facilities exist around the world,” the manual says.

“Whether to protect vital assets and capabilities, mitigate weapon system and sensor overmatch, to strengthen a larger defensive position, or simply to be used for transportation in our largest cities, subterranean systems continue to be expanded and relied upon throughout the world. Therefore, our Soldiers and leaders must be prepared to fight and win in this environment.”

See Subterranean Operations, Army Techniques Publication ATP 3-21.51, November 2019.

Logistical issues aside, subterranean operations can have adverse effects on soldiers’ emotional, moral, and spiritual health, the Army manual said.

“Subterranean environments may reduce a Soldier’s sense of purpose and commitment, causing them to lose combat effectiveness sooner than anticipated due to the psychological and physiological stress of these environments.”

“As a result, Soldiers may have powerful emotional reactions. These may include an overwhelming sense of fear or momentary loss of their moral compass leading to illegal or immoral actions.”

It is usually taken for granted that transparency is a prerequisite to good government. The idea seems obvious.

“Transparency promotes accountability and provides information for citizens about what their Government is doing,” said President Obama in 2009. “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

But in practice, that is not always true. Demands for transparency can sometimes be used to undermine the values of an open society, and current events compel a more nuanced understanding of the concept.

When President Trump and his political allies press for public disclosure of the lawfully protected identity of the CIA Ukraine whistleblower, their efforts are not calculated to promote accountability but to counter or delegitimize independent criticism, and perhaps to deter other would-be whistleblowers.

The Environmental Protection Agency is citing transparency in a pending proposal to block the use of scientific research in formulating regulations on hazardous materials unless the underlying data is made fully and publicly available. That means that research involving confidential medical records, for example, would not be permitted to serve as a basis for public policy under the EPA proposal, the New York Times reported, since those records are not (and generally should not be) available to the general public.

Some purported transparency shades easily into deception and disinformation. When President Trump “revealed” last month that Islamic State leader al-Baghdadi died “whimpering,” that was almost certainly untrue. No military official has been willing or able to confirm the claim, which seems improbable considering that Baghdadi killed himself by detonating a suicide vest.

Other forms of transparency are mostly harmless but also not very helpful. One thinks with chagrin of the many millions of pages of painstakingly declassified government records in official archives that go unread by the public and untouched even by specialists.

The point is not that transparency is bad or good, but rather that it cannot be an end in itself. It is a tool that is often indispensable for democratic decision making, but it is a tool that can also be used as a weapon.

Complicating matters further, the transparency that one person considers indispensable is often deemed to be unnecessary, inappropriate or even threatening by someone else. (Current congressional demands for testimony and documents amount to “constant harassment,” said Attorney General William Barr in a speech last week arguing for the primacy of the executive branch.)

New forums and procedures may be needed to adjudicate such disputes. Unauthorized disclosures can sometimes provide an expeditious shortcut, though the same dichotomy of constructive and destructive transparency applies with equal force to leaks.

In short, “Transparency is not, in itself, a coherent normative ideal,” as David E. Pozen of Columbia Law School recently wrote. It will yield positive outcomes in some circumstances and negative outcomes in others. Therefore, “less romanticism and more realism” about the topic is needed. See Pozen’s article “Seeing Transparency More Clearly,” Public Administration Review (forthcoming).

More than 2.8 million U.S. military and civilian defense personnel were deployed in more than 150 countries around the world last year.

No one person can fully comprehend the workings of the Department of Defense. It is a massively complicated bureaucratic construct composed not only of the military services (Air Force, Army, Navy, Marine Corps), but also of numerous defense agencies, “DoD field activities,” and unified combatant commands, among other components.

An internal Pentagon publication entitled “Organization and Management of the Department of Defense,” presented an overview of this mammoth enterprise as of March 2019.

The 168 page document provides detailed information on the Department’s structure and governance, along with various other significant data that can be hard to locate.

So one finds, for example, that there were a total of 1,310,731 active U.S. military personnel at the end of 2018, including no fewer than 229,611 officers.

There were 2,882,061 U.S. military and civilian defense personnel deployed in 158 countries, which are broken down in the document by the number of personnel and their location abroad — except for Iraq, Syria and Afghanistan, where deployment figures are currently restricted.

The Pentagon document has already been overtaken by events in some respects. Instead of the 19 defense agencies it lists, there are now 20 — including the new Space Development Agency. And instead of 10 unified combatant commands, there are now 11 — including the new U.S. Space Command.

Additional material about DoD organization and management can be found in the new DoD financial audit for FY 2019, published last week.

The venerable term “national technical means” which has long been used to refer to U.S. intelligence satellites and related capabilities is quietly dropping out of official usage.

The official DOD Dictionary of Military and Associated Terms still included “NTM” (for “national or multinational technical means of verification”) on the list of acronyms in its May 2019 edition, as it has in the past. But by the June revision, it was gone.

A newly updated US Army Field Manual on Army Space Operations proposed a new term that it said replaces national technical means:

“National Reconnaissance Office overhead systems (known as NOS) — formerly referred to as national technical means — are spaced-based sensors designed to collect data in order to support intelligence analysis.”

Except for that new Army manual, though, there is no other indication that these assets are in fact “known as NOS.” See Army Space Operations, Field Manual (FM) 3-14, October 30, 2019.

It is not clear why the traditional term has fallen out of favor.

The use of “national technical means of verification” dates from the 1972 Anti-Ballistic Missile Treaty. It was deliberately left undefined, then-Director of Central Intelligence Richard Helms said in 1971, both to protect intelligence methods and to avoid offending Soviet sensibilities.

“The Soviets themselves are very anxious that it not be discussed,” said DCI Helms at that time. “They have made it clear that they are unwilling to agree explicitly to anything which would appear to some as an infringement of territorial sovereignty, a matter on which they are extremely sensitive. So we draw no more attention than is necessary to this activity.”

“There will be no misunderstanding between Washington and Moscow about what is meant [by “national technical means”]. But we’ll avoid a lot of problems by saying it that way,” Helms said.

“National technical means of verification” are still referenced in the New START Treaty, which will expire in February 2021 if not renewed.

Updated below

The Department of the Treasury blocked one transaction by a foreign person or entity who was engaged in malicious cyber activities earlier this year, using the national emergency powers that are available pursuant to a 2015 executive order.

But the value of the intercepted transaction was only $0.04, the Department said in a new report to Congress.

No other transactions were blocked by the Department of the Treasury’s Office of Foreign Assets Control (OFAC) during the reporting period from March 15 to September 8 of this year, according to the Department’s latest report. See Periodic Report on the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities, October 3.

Meanwhile, the cost of implementing the national emergency on malicious cyber activities was approximately $770,000 during the latest six-month period, the same report said.

Is this normal? Should Americans be concerned about the stark disparity between the amount of government expenditures and the reported proceeds? The Department of the Treasury did not respond to our inquiry on the subject yesterday. [see update below]

Background on OFAC’s Cyber-Related Sanctions Program can be found here.

Update: An official said that it would be a mistake to judge the efficacy or the efficiency of a particular sanctions program from a single periodic report, especially since these reports are not comprehensive assessments of the program.

Nor are blocked transactions the sole or primary measure of impact. Persons subject to sanctions may experience a range of other impacts, including: the disruption or loss of existing or planned contracts and other relationships with U.S. and foreign business partners; the blocking or rejection of transactions with persons outside of U.S. jurisdiction; the disruption of financial and other activities due to complementary actions taken by U.S. allies and partners; reputational damage due to the exposure of malign activities; the cost of altering and rebuilding cyber infrastructure exposed due to the imposition of sanctions; disavowal by associated governments; and loss of visas to travel to the United States and potentially to other countries.