A bill introduced by Senator Ron Wyden would require the FBI and the Director of National Intelligence to declassify “any and all information” regarding actions by the government of Saudi Arabia to assist Saudi nationals who are accused of crimes in the United States to flee the country.

As Senator Wyden explained last week, the bill was prompted by multiple cases — 19 over the past 7 years, according to The Oregonian newspaper — in which Saudi nationals who were awaiting trial on charges such as manslaughter and sexual assault were able to flee the U.S. and escape trial.

The bill is categorical in its requirements. It does not “ask” for declassification. It does not call for “declassification review” or allow for any exercise of discretion. It does not mention any possible exceptions to declassification for intelligence sources and methods, foreign government information, or other national security-related material. None of that.

Instead, it quite simply states: the FBI and the DNI “shall declassify any and all information” related to the possible role of the Saudi government in this matter.

The bill, known as the Saudi Fugitive Declassification Act (S. 2635), was passed by the full Senate on October 17 and now awaits consideration by the House Judiciary Committee.

One might presume that foreign spies do more damage to national security than those who leak classified information to the press. But the opposite could be true, government attorneys told a court this week, because the leaked information is circulated more widely.

“While spies typically pass classified national defense information to a specific foreign government, leakers, through the internet, distribute such information without authorization to the entire world,” the Justice Department attorneys wrote. “Such broad distribution of unauthorized disclosures may actually amplify the potential damage to the national security in that every country gains access to the compromised intelligence,” they argued.

They wrote in opposition to a motion filed by accused leaker Daniel Everette Hale, who had moved for dismissal on First Amendment grounds of the Indictment against him.

The argument that leakers may be worse than spies is not new. It was previously advanced by the government in 2011 in the prosecution of former CIA officer Jeffrey Sterling, as reported at the time in Politico.

While Hale’s argument is obviously self-serving, the case for dismissal of the charges against him is nevertheless substantial, said the Reporters Committee for Freedom of the Press. The increased number of such prosecutions of sources who leak classified information to the press is adversely affecting the larger public interest, the organization argued in an amicus brief filed in support of the defendant.

“This case must be considered in the context of a dramatic uptick in the prosecution of journalistic sources since 2009, an increase in the severity of punishment, and a heightened danger of selective enforcement against lower-ranking disclosers,” their brief said.

“Not only are there far more cases today than 10 years ago, one can discern two trends in these cases: punishments that continue to increase in severity and the possibility of selective prosecutions against more vulnerable, lower-level disclosers.”

“Journalistic source prosecutions directly chill newsgathering by dissuading sources from coming forward with newsworthy information in the public interest.”

Collectively, these factors alter the context in which prior leak cases were adjudicated, the Reporters Committee argued. Current circumstances and the specifics of this case justify dismissal, the amicus brief said.

A new NASA report examines various scenarios in which nuclear reactors that are used to power spacecraft could accidentally reenter the Earth’s atmosphere.

“There are a number of types of reentry events that can potentially occur with missions containing fission reactors. Each type of reentry event can produce a variety of possible adverse environments for the fission reactor,” the report said.

The postulated scenarios include accidental reentry upon launch, reentry from orbit, and reentry during Earth flyby.

“There are three potential outcomes for a fission reactor in a reentry scenario,” the report explains. “First, the fission reactor can burn up in the atmosphere due to the aerothermal loads imparted to it during reentry. Second, it can survive the reentry and impact the Earth’s surface with or without additional spacecraft components. Finally, it can break apart during reentry, but its various components survive reentry and impact the Earth’s surface (a scattered reentry).”

See Fission Reactor Inadvertent Reentry: A Report to the Nuclear Power & Propulsion Technical Discipline Team, by Allen Camp et al, NASA/CR−2019-220397, August 2019.

A conference on “Nuclear Energy in Space: Nonproliferation Risks and Solutions” will be held in Washington DC on October 17 that will focus on the anticipated use of highly enriched uranium in space nuclear reactors, and the feasibility of using low enriched uranium instead. The conference is sponsored by the Nuclear Proliferation Prevention Project (NPPP) at the University of Texas at Austin.

Several previous technical analyses have concluded that use of low enriched uranium in space reactors is in fact feasible, but that it would probably require a reactor of significantly larger mass.

See “White Paper – Use of LEU for a Space Reactor,” August 2017 and “Consideration of Low Enriched Uranium Space Reactors” by David Lee Black, July 2018.

The procedures that govern congressional impeachment investigations are largely left to the discretion of the House and, in the case of a trial, to the discretion of the Senate.

A new publication from the Congressional Research Service summarizes the options. It “also describes some of the ways in which an impeachment investigation, as compared to a more traditional investigation for legislative or oversight purposes, might bolster the House’s ability to obtain, either voluntarily or through the courts, information from the executive branch.” Finally, it “briefly describes possible future steps that might follow an impeachment inquiry, including possible action by the Senate.”

See Impeachment Investigations: Law and Process, CRS Legal Sidebar, October 2, 2019

Some other noteworthy new CRS publications include the following.

Ukraine: Background, Conflict with Russia, and U.S. Policy, updated September 19, 2019

Military Space Reform: FY2020 NDAA Legislative Proposals, CRS In Focus, October 2, 2019

American War and Military Operations Casualties: Lists and Statistics, updated September 24, 2019

Defense Primer: Defense Support of Civil Authorities, CRS In Focus, October 2, 2019

Persons who threaten democracy in Ukraine also represent a threat to the United States, according to a 2014 executive order issued by President Obama following Russia’s invasion and seizure of the Crimean region.

In fact, the resulting threat to US national security and foreign policy is so severe as to constitute a “national emergency,” said Executive Order 13660, which remains in effect. Those who engage in “actions or policies that undermine democratic processes or institutions in Ukraine” may have their assets blocked by the United States.

As of 2017, some 600 individuals and entities had been sanctioned — mostly Russian and Ukrainian officials, not Americans.

Several more individuals were designated for sanctions this year under the executive order, according to the latest report to Congress from the Secretary of the Treasury. See Periodic Report on the National Emergency with Respect to Ukraine, September 6, 2019.

Noteworthy new and updated publications from the Congressional Research Service include the following.

Intelligence Community Whistleblower Protections: In Brief, updated September 23, 2019

U.S.-Iran Tensions and Implications for U.S. Policy, updated September 23, 2019

U.S. Role in the World: Background and Issues for Congress, updated September 23, 2019

U.N. Peacekeeping Operations in Africa, September 23, 2019

China’s Retaliatory Tariffs on U.S. Agriculture: In Brief, September 24, 2019

Global Research and Development Expenditures: Fact Sheet, updated September 19, 2019

U.S. Research and Development Funding and Performance: Fact Sheet, updated September 19, 2019

Disclosing classified information without authorization is a crime even if the leaker had good intentions and was motivated by a larger public interest, the government said this week. Therefore, any mention of the purpose of the disclosure should be ruled out of bounds in trial, government attorneys argued.

The issue arose in pre-trial motions in the case of USA v. Daniel Everette Hale. Hale is a former NSA intelligence analyst and NGA contractor who is accused of having provided classified documents concerning US military drone programs to The Intercept.

“The defense likely will want to argue that, even if the defendant engaged in the conduct alleged, he had good reasons to leak the documents at issue and is being unfairly prosecuted under criminal statutes that carry significant penalties. Any such arguments, however, would be entirely improper,” the government said in a motion to exclude such material.

“Evidence of the defendant’s views of military and intelligence procedures would needlessly distract the jury from the question of whether he had illegally retained and transmitted classified documents, and instead convert the trial into an inquest of U.S. military and intelligence procedures.”

“The defendant may wish for his criminal trial to become a forum on something other than his guilt, but those debates cannot and do not inform the core questions in this case: whether the defendant illegally retained and transferred the documents he stole,” the September 16 government motion said.

The government said the defense should also be barred from arguing that a different perpetrator committed the charged crimes, from claiming that “everybody leaks classified information,” and from informing the jury that if convicted the defendant could go to prison.

“Any punishment or consequence the defendant might suffer is irrelevant to the factual issues and, therefore, inadmissible,” the government motion said.

Exclusion of a “good motive” or public interest argument is consistent with past practice in previous leak trials under the Espionage Act dating back to the case of Daniel Ellsberg and the Pentagon Papers, as writer Tom Mueller recalled in his new cultural history of whistleblowing Crisis of Conscience: Whistleblowing in an Age of Fraud (p. 111).

In Ellsberg’s 1973 trial, “Prosecutors had also insisted, and [Judge William] Byrne had agreed, that the jury be instructed not to consider the larger questions raised by the defendant’s acts: the morality of the Vietnam War, the public’s right to know, the freedom of the press, or the Supreme Court’s recent First Amendment decision in favor of the [New York] Times,” Mueller wrote.

“Ellsberg still remembers his shock when the prosecution prevented him from explaining his motives for releasing the papers. When his lawyer asked him straightforwardly why he’d done it, a prosecutor objected that the question was ‘immaterial,’ and Judge Byrne sustained. ‘My lawyer was stunned,’ Ellsberg remembers. ‘He told Judge Byrne that he’d never heard of a case where a defendant wasn’t allowed to tell the jury why he’d done what he did. “Well, you’re hearing one now,” Byrne said’.”

“This restrictive interpretation of the Espionage Act presaged subsequent . . . prosecutions after 9/11, which forbade Chelsea Manning, Tom Drake and other national security whistleblowers from explaining why they blew the whistle,” Mueller wrote.

Defense challenges to secrecy policy and classification decisions should also be prohibited, the government argued in a separate motion in the Hale case.

“It is not proper for the Court or the defense to challenge a government agency’s classification determination. Such determinations are exclusively a function of the Executive Branch. It follows, therefore, that the defense cannot challenge the classification of the documents at issue in this case or make general allegations of misclassification of information within the U.S. government at large,” the government said.

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For its part, the defense argued this week that the case against Hale should be dismissed because the Espionage Act as applied here infringes impermissibly on First Amendment freedoms.

“Now that the Act is used regularly against those who leak for no purpose other than informing their fellow citizens about their own government, its chilling effect is fatal to its continued viability. Moreover, its broad terms allow viewpoint-based prosecutions of the press and those whose actions are necessary for the press to freely operate.”

“Accordingly, the provisions charged here should be voided as facially overbroad, . . . and the Indictment should be dismissed,” the defense motion said (WaPo, AP).

The parties will respond to each other’s motions in weeks to come.

Noteworthy new and updated reports from the Congressional Research Service include the following.

Yemen: Civil War and Regional Intervention, updated September 17, 2019

Attacks Against Saudi Oil Rattle Markets, CRS Insight, September 16, 2019

U.S.-China Trade and Economic Relations: Overview, CRS In Focus, updated September 12, 2019

Immigration Detention: A Legal Overview, September 16, 2019

Antitrust and “Big Tech”, September 11, 2019

In July, the Planetary Society’s Lightsail 2 spacecraft demonstrated the viability of “solar sailing,” becoming “the first spacecraft in Earth orbit propelled solely by sunlight.”

But the practicality of solar sailing was first described six decades earlier by physicist Richard L. Garwin.

“It is difficult to exaggerate the importance of solar radiation pressure for the propulsion of satellites or space ships within the solar system,” he wrote in the Journal of the American Rocket Society in March 1958, when he was 30 years old. “Although the acceleration is numerically small, the velocity changes in reasonable times by significant amounts.”

This week, Garwin reflected on this and other episodes in his lifetime of problem solving and technical innovation. He spoke to post-doctoral researchers from the Harvard Physics Department. See Serendipities from Long Ago by Richard L. Garwin, keynote address, September 11, 2019.

How did he come up with solar sailing?

“As physicists do, I had been thinking about how things worked or could work and learned about radiation pressure, as did everybody in high school,” he said.

Not everyone grasped the concept immediately, Garwin noted.

“I recall that when the Chief Scientist of the U.S. Air Force was asked about this proposal at a press conference, he explained that even if it would work, it could only be used for going outward beyond Earth orbit around the Sun and not for going inward, because radiation pressure was radially outward from the Sun.”

“What he missed, of course, was that the fact that the sail was in Earth orbit or, for that matter solar orbit, meant that a reflective sail could be angled so as to provide a force perpendicular to the sail, that would have a component either along the velocity vector or in the opposite direction, so that the orbital velocity component could be increased or reduced; thus, the SS could either gain or lose energy and so spiral in or out from the Sun, or in Earth orbit.”

A “national emergency” declared by President Trump last year to deal with the threat of foreign interference in U.S. elections has still not resulted in the identification or punishment of any perpetrators of such interference, according to the second periodic report to Congress on the emergency.

“No entities or individuals have been designated pursuant to E.O. 13848,” the executive order which declared the election interference emergency. “As a result, OFAC [Office of Foreign Assets Control] took no licensing actions involving E.O. 13848,” the Secretary of the Treasury told Congress in a report last month, echoing the identical outcome reported in March 2019.

This week the President renewed the underlying declaration of emergency for another year.

“The ability of persons located, in whole or in substantial part, outside the United States to interfere in or undermine public confidence in United States elections, including through the unauthorized accessing of election and campaign infrastructure or the covert distribution of propaganda and disinformation, continues to pose an unusual and extraordinary threat to the national security and foreign policy of the United States,” according to a September 10 notice to Congress.

“For this reason, the national emergency declared on September 12, 2018, must continue in effect beyond September 12, 2019.”

Separately, the President issued an executive order that terminated a 1995 national emergency concerning Middle East terrorism and directed additional steps to respond to another terrorism-related national emergency.

Meanwhile, the President also renewed the national emergency that was declared after 9/11. “Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities adopted to deal with that emergency must continue in effect beyond September 14, 2019.”

The Congressional Research Service developed “a series of short primers to provide Members of Congress an overview of key aspects of the Department of Defense and how Congress exercises authority over it.” The defense primers, several of which have been recently updated, can be found here.

Other noteworthy recent CRS publications include the following.

Overseas Contingency Operations Funding: Background and Status, updated September 6, 2019

Congress and the War in Yemen: Oversight and Legislation 2015-2019, updated September 6, 2019

Afghanistan: Issues for Congress and Legislation 2017-2019, updated September 3, 2019

DHS Border Barrier Funding, updated September 6, 2019

Nonstrategic Nuclear Weapons, updated September 6, 2019

A new White House budget memo presents science and technology as a distinctly American-led enterprise in which U.S. dominance is to be maintained and reinforced. The document is silent on the possibility or the necessity of international scientific cooperation.

“The five R&D budgetary priorities in this memorandum ensure that America remains at the forefront of scientific progress, national and economic security, and personal wellbeing, while continuing to serve as the standard-bearer for today’s emerging technologies and Industries of the Future,” wrote Acting OMB Director Russell T. Vought and White House science advisor Dr. Kelvin K. Droegemeier in the August 30 memo.

The document, which is intended to inform executive branch budget planning for fiscal year 2021, contains no acknowledgment that many scientific challenges are global in scope, that foreign countries lead the U.S. in some areas of science and technology, or that the U.S. could actually benefit from international collaboration.

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The White House memo begins by designating the entire post-World War II period until now as America’s “First Bold Era in S&T [Science & Technology].” It goes on to proclaim that the “Second Bold Era in S&T” has now begun under President Trump.

“The Trump Administration continues to prioritize the technologies that power Industries of the Future (IotF),” the memo declares.

Many of the proposed technology priorities are already in progress — including artificial intelligence, robotics, and gene therapy. Some are controversial or disputed — such as the purported need to invest in protection against electromagnetic pulse attacks.

Meanwhile, the memo takes pains to avoid even mentioning the term “climate change,” which is disfavored by this White House. Instead, it speaks of “Earth system predictability” and “knowing the extent to which components of the Earth system are practically predictable.”

Today’s Second Bold Era is “characterized by unprecedented knowledge, access to data and computing resources, ubiquitous and instant communication,” and so on. “Unfortunately, this Second Bold Era also features new and extraordinary threats which must be confronted thoughtfully and effectively.”

The White House guidance suggests vaguely that the Second Bold Era could require a recalibration of secrecy policy in science and technology. “[Success] will depend upon striking a balance between the openness of our research ecosystem and the protection of our ideas and research outcomes.”

This may or may not augur a change in the longstanding policy of openness in basic research that was formally adopted in President Reagan’s 1985 National Security Decision Directive 189. That directive stated that “It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted.”

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The context for the concern about protecting U.S. ideas and research outcomes is an assessment that U.S. intellectual property is being aggressively targeted and illicitly acquired by China, among other countries.

“China has expansive efforts in place to acquire U.S. technology to include sensitive trade secrets and proprietary information,” according to a 2018 report from the National Counterintelligence and Security Center. “Chinese companies and individuals often acquire U.S. technology for commercial and scientific purposes.”

Perceived Chinese theft of U.S. intellectual property is one of the factors that led to imposition of U.S. tariffs on Chinese imports. See U.S.-China Relations, Congressional Research Service, August 29, 2019.

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At an August 30 briefing on artificial intelligence in the Department of Defense, Air Force Lt. General Jack Shanahan discussed the need to protect military data in the context of AI.

But unlike the new White House memo, Gen. Shanahan recognized the need for international cooperation even (or especially) in national security matters:

“We’re very interested in actively engaging a number of international partners,” he said, “because if you envision a future of which the United States is employing A.I. in its military capabilities and other nations are not, what does that future look like? Does the commander trust one and not the other?”

By analogy, however, the same need for international collaboration arises in many other areas of science and technology which cannot be effectively addressed solely on a national basis, from mitigating climate change to combating disease. In such cases, everyone needs to be “at the forefront” together.

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One way to bolster U.S. scientific and intellectual leadership that the White House memo does not contemplate is to encourage foreign students at American universities to remain in this country. Too often, they are discouraged from doing so, wrote Columbia University Lee C. Bollinger in the Washington Post.

“Many of these international scholars, especially in the fields of science, technology, engineering and mathematics, would, if permitted, prefer to remain in the United States and work for U.S.-based companies after graduation, where they could also contribute to the United States’ economic growth and prosperity. But under the present rules, when their academic studies are completed, we make it difficult for them to stay. They return to their countries with the extraordinary knowledge they acquired here, which can inform future commercial strategies deployed against U.S. competitors,” Bollinger wrote on August 30.

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As for the Trump Administration’s pending FY2020 budget request for research and development, it does not convey much in the way of boldness (or Boldness).

“Under the President’s FY2020 budget request, most federal agencies would see their R&D funding decline. The primary exception is the Department of Defense,” according to the Congressional Research Service.

“The President’s FY2020 budget request would reduce funding for basic research by $1.5 billion (4.0%), applied research by $4.3 billion (10.5%), and facilities and equipment by $0.5 billion (12.8%), while increasing funding for development by $4.5 billion (8.3%).” See Federal Research and Development (R&D) Funding: FY2020, updated August 13, 2019.