On October 27, 1977, Dr. Gerald F. Ross filed a patent application for a new invention he had devised to defeat the jamming of electromagnetic transmissions at specified frequencies. But it was not until June 17, 2014 — nearly 37 years later — that his patent was finally granted (Anti-jam apparatus for baseband radar systems, patent number 8,754,801).

In the interim, Dr. Ross’s patent application had been subject to a secrecy order under the Invention Secrecy Act of 1951, which both prevented issuance of the patent and prohibited its public disclosure.

At the end of Fiscal Year 2014 (on September 30), there were 5,520 such invention secrecy orders in effect, according to statistics released by the U.S. Patent and Trademark Office under the Freedom of Information Act.

That is the highest number of invention secrecy orders in effect since 1994. It is unclear whether this reflects growing innovation in sensitive technology areas, or a more restrictive approach to disclosure by government agencies.

In fact, the overwhelming majority of current secrecy orders were issued in prior years, but there were 97 new secrecy orders that were imposed in FY 2014. Meanwhile, there were 22 existing orders that were rescinded, including the order concerning Dr. Ross’s invention.

Under the Invention Secrecy Act, secrecy orders may be imposed whenever, in the judgment of an executive branch agency, the disclosure of a patent application would be “detrimental to the national security.” This is a lower, less demanding standard than that for national security classification (which applies to information that could “cause damage to national security”) and not all secret inventions are classified. Some may be unclassified but export controlled, or otherwise restricted.

Other newly disclosed inventions formerly subject to a secrecy order that was rescinded by the government during the past year include these (according to data obtained from the Patent and Trademark Office):

Method of producing warheads containing explosives, patent number 8,689,669

Method of treating a net made from ultra-high-molecular-weight polyethylene, patent number 8,808,602

Ballistic modification and solventless double propellant, and method thereof, patent number 8,828,161

Ballistic modifier formulation for double base propellant, patent number 8,864,923

Synthetic aperture radar smearing, patent number 8,836,569

Noteworthy new and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

A Guide to U.S. Military Casualty Statistics: Operation Inherent Resolve, Operation New Dawn, Operation Iraqi Freedom, and Operation Enduring Freedom, November 20, 2014

Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions, November 21, 2014

U.S. Secret Service Protection Mission Funding and Staffing: Fact Sheet, November 25, 2014

The Obama Administration’s November 2014 Immigration Initiatives: Questions and Answers, November 24, 2014

The Obama Administration’s Announced Immigration Initiative: A Primer, CRS Legal Sidebar, November 24, 2014

Department of Homeland Security: FY2015 Appropriations, November 20, 2014

Congress Faces Calls to Address Expiring ACA Appropriations, CRS Insights, November 25, 2014

U.S. Greenhouse Gas Emissions: Recent Trends and Factors, November 24, 2014

Cybersecurity: FISMA Reform, CRS Insights, November 24, 2014

Welfare, Work, and Poverty Status of Female-Headed Families with Children: 1987-2013, November 21, 2014

Overview of the Federal Tax System, November 21, 2014

Food Recalls and Other FDA Administrative Enforcement Actions, November 20, 2014

A Federal Pause in Potentially Risky Influenza Research, CRS Insights, November 24, 2014

The National Archives and Records Administration told the Central Intelligence Agency last week that it was withholding approval of a CIA proposal to allow the destruction of the email records of all but 22 senior Agency officials.

“NARA intends to reassess the Central Intelligence Agency (CIA) proposal for the disposition of non-senior email accounts,” wrote Paul M. Wester, Jr., Chief Records Officer at NARA in a November 20 letter to Joseph Lambert, Director of Information Management Services at CIA.

“Based on comments from Members of the U.S. Senate Select Committee on Intelligence and a number of public interest groups, we are concerned about the scope of the proposed schedule and the proposed retention periods,” Mr. Wester wrote.

Based on a preliminary review of the CIA proposal, NARA had initially recommended approval of the plan, Secrecy News reported last month. (“CIA Asks to Destroy Email of Non-Senior Officials,” October 1.)

But critical comments that were submitted to NARA — from the Federation of American Scientists, Openthegovernment.org and other public interest groups and individuals, the Department of Defense Chief Defense Counsel, and especially from Senators Feinstein and Chambliss, the leaders of the Senate Intelligence Committee, and Senators Wyden, Udall and Heinrich, Members of the Committee — turned the tide and blocked the proposal in its current form.

“We will hold a public meeting on this schedule in the coming months to address the comments raise by you and others and to share how NARA is moving forward,” wrote Margaret Hawkins of NARA Records Management Services in an email message today. “This meeting will be announced in the Federal Register and will be open to all commenters and the public.”

For related coverage, see: “The CIA Wants To Delete Old Email; Critics Say ‘Not So Fast'” by David Welna, NPR All Things Considered, November 20; “Top Senators Oppose CIA Move to Destroy Email” by Siobhan Gorman, Wall Street Journal, November 19; “National Archives: Ok, So Maybe Letting The CIA Destroy Emails Wasn’t A Great Idea” by Ali Watkins, Huffington Post, November 21; and “Furor Over CIA Shake-Up of Email System” by Adam Klasfeld, Courthouse News Service, November 7.

When it comes to Department of Defense doctrine on military treatment of detained persons, “unlawful enemy combatants” are a thing of the past. That term has been retired and replaced by “unprivileged enemy belligerents” in a new revision of Joint Publication 3-13 on Detainee Operations, dated November 13, 2014.

Among other changes, the revised Publication adopts Article 75 of the First Additional Protocol to the Geneva Conventions which provide minimum standards for humane treatment of detained persons. It also presents expanded discussion of biometric capabilities that are applicable to detainees.

The previous edition of Joint Publication 3-13, published in 2008, is available here for comparison.

The government has occasionally invoked the state secrets privilege in a legal proceeding without ever publicly revealing that it had done so, government attorneys disclosed in a pending state secrets case this week.

Last September, observers were surprised when the government intervened and asserted the state secrets privilege in a private defamation lawsuit brought by Greek businessman Victor Restis against the anti-Iran advocacy organization United Against Nuclear Iran. (“Private Lawsuit Jeopardizes State Secrets, US Says,” Secrecy News, September 14).  When the government further refused to specify the nature of the information it said was privileged, or even which agency was invoking the privilege, critics called the move extraordinary and unprecedented.

But it was not unprecedented, government attorneys replied this week. To the contrary, the current case is actually within the “historical spectrum” of state secrets cases, and there are some that have been even more secretive.

“There […] have been cases, like this one, where specific details concerning the Government’s interest in a private lawsuit could not be described on the public record,” attorneys told the court in their November 19 reply.

They cited, for example, a 1992 case known as Terex Corporation v. Richard Fuisz and Seymour Hersh, in which the plaintiff had accused the defendants of defamation. The government asserted the state secrets privilege in that case, but without identifying the source of the assertion, and the case was dismissed.

“There, as here, the Government submitted its supporting declaration ex parte and in camera and did not publicly disclose which agency asserted the privilege.”

“The Government does not fault plaintiffs and amici for not being aware of the Terex case, as there appear to be no public decisions from that matter on Westlaw,” attorneys added. The case was discussed in a declaration by Anthony J. Coppolino, attached to the government response.

But the “spectrum” of secrecy has sometimes extended even beyond that, the attorneys wrote:

“Although extremely rare, there also have been matters in which the Government’s state secrets assertion has been entirely under seal. By definition, of course, sealed matters cannot be found on the public record.”

Judging by that standard of total invisibility, the government has been substantially forthcoming in the present case, the government attorneys said, particularly since it admits that it is invoking the state secrets privilege.

“In publicly acknowledging that it is asserting the state secrets privilege in this case and submitting a public brief in support of its assertion, the Government has disclosed more information about its state secrets privilege assertion here than has occurred in prior sealed matters,” they wrote.

It follows that the plaintiff in this case is not entitled to any further information about the assertion of the state secrets privilege, they insisted, and no further public disclosure should be required by the court.

“The Government cannot publicly reveal the scope or nature of the privileged information at issue here. Whatever impact exclusion of this information would have on the parties’ ability to establish their claims or valid defenses, the Government believes that further proceedings would inevitably risk the disclosure of state secrets if this case were to proceed. In general terms, this risk turns on the nature of the question presented in this action and the proof required by the parties to establish or refute the claim, as well as on the risks associated with the normal give and take of adversarial questioning and probing.”

“But in no event should the Court disclose or direct disclosure of additional information without providing an opportunity for the Government to engage further with the Court or, if necessary, to seek further review,” they wrote.

*    *    *

In a separate filing, the defendant United Against Nuclear Iran (UANI) said that all of its allegedly defamatory statements against Victor Restis were true and correct, and that the plaintiff was entitled to no relief at all, whether or not the case went forward.

But in presenting its argument, the UANI filing listed over a dozen allegations against Restis that it said could be established on the basis of existing documents and testimony that were not subject to the state secrets privilege.

And the number and specificity of those allegations implicitly suggested that it might be possible to litigate the case on the basis of non-privileged information after all.

*    *    *

When the court in the lawsuit Gulet Mohamed v. Eric Holder rejected a government motion to dismiss that case on state secrets grounds on October 30, I supposed incorrectly that it might be the first time such a motion for dismissal had been denied in a state secrets case (Secrecy News, October 31).

In fact there have been quite a few such denials, many of which were itemized in an exhibit filed by the government this week in the Restis case.

However, denial of a motion for dismissal does not entail denial of the privilege or release of the information that is said to be privileged.

Government attorneys told the Restis court that there was not “a single case in which a state secrets assertion actually made by the Government in civil litigation was finally rejected by courts reviewing the matter, and in which the privileged information at issue was ultimately ordered to be disclosed.”

Yesterday, Judge Anthony J. Trenga denied a government motion for a stay of proceedings in the Gulet Mohamed v. Holder case, and said that the case challenging the constitutionality of the “no fly” list would go forward while the government revises its watchlisting procedures.

New products from the Congressional Research Service obtained by Secrecy News include the following.

Intelligence Authorization Legislation for FY2014 and FY2015: Provisions, Status, Intelligence Community Framework, November 20, 2014

U.S. Family-Based Immigration Policy, November 19, 2014

Yemen: Background and U.S. Relations, November 19, 2014

Natural Gas for Cars and Trucks: Options and Challenges, November 19, 2014

State Minimum Wages: An Overview, November 18, 2014

Veterans Exposed to Agent Orange: Legislative History, Litigation, and Current Issues, November 18, 2014

Internships, Fellowships, and Other Work Experience Opportunities in the Federal Government, November 18, 2014

Rep. James P. Moran this week called on President Obama to pardon John Kiriakou, the former CIA officer who was convicted of disclosing the name of an undercover intelligence officer and who is currently serving a prison sentence in the Federal Correctional Institution in Loretto, Pennsylvania.

“Mr. Speaker, I rise today to ask for a Presidential pardon for John Kiriakou,” said Rep. Moran (D-VA), who is retiring from Congress, in a statement entered in the Congressional Record. “Mr. Kiriakou is an American hero.”

“John Kiriakou is a whistleblower, as well. The first American intelligence officer to officially and on-record reveal that the U.S. was in the torture business as a matter of White House policy under President Bush. In confirming what the American media and policymakers were hearing whispered–that waterboarding and other enhanced interrogation techniques were a matter of standard military and intelligence procedures–he helped begin an intense and overdue debate over whether torture violated international law, tarnished our higher American principles and undermined the critical need for reliable, actionable information,” Rep. Moran said.

“And John Kiriakou is a convicted felon, serving a 21/2 year plea bargained sentence in a Pennsylvania federal prison. The charge against him is violating the Intelligence Identities Protection Act, whereby John answered a question from a U.S. reporter who was duplicitously fronting for lawyers defending Al Qaeda prisoners held at Guantanamo Bay and in the process unintentionally confirmed the classified identity of a CIA colleague. A colleague who, by the way, was being erroneously labeled as an enhanced interrogation techniques torturer.”

“The real issue here is the extremely selective prosecution of John and the ongoing efforts to intimidate him from talking about our intelligence community’s misfires,” he said.

“Whatever John’s misdeeds–and he admits that answering that reporter’s questions was ill-advised and naive–he has more than paid for them. After fifteen years of service to his country, the personal risks and costs of a life in the intelligence world, the legal double-standard applied, and now two years in prison John Kiriakou deserves a Presidential pardon so his record can be cleared, just as this country is trying to heal from a dark chapter in its history,” Rep. Moran said.

Rep. Moran’s statement does not constitute an application for a presidential pardon, and Mr. Kiriakou would not normally be eligible for such a pardon until at least 5 years after his impending release from prison.

The Moran statement does, however, represent a rare congressional expression of sympathy for a convicted leaker, and an unusual gesture of respect for an incarcerated American of any kind.

And in fact, there is some precedent for a pardon, even among the small cohort of convicted leakers of classified information.

In January 2001, President Clinton formally pardoned Samuel Loring Morison, the first person to be convicted of unauthorized disclosure of classified information to the press. A copy of the certificate of clemency is here.

“What is remarkable is not the crime,” wrote Sen. Patrick Moynihan in a 1998 letter to the President about the Morison case, “but that he is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.”

“A presidential pardon is a sign of forgiveness,” wrote Justice Department pardon attorney Roger C. Adams at the time. “It does not erase or expunge the record of conviction and does not indicate innocence.”

Senator Edward J. Markey asked the Secretary of Energy this week to expedite the investigation of the firing of James Doyle from Los Alamos National Laboratory, which occurred after Doyle published an analysis critical of U.S. nuclear weapons policy.

“I write to urge you in the strongest possible terms to quickly conclude your investigation into the recent termination of Dr. James E. Doyle, a nuclear security and non-proliferation specialist who had been employed at the Los Alamos National Laboratory (LANL) for 17 years,” Sen. Markey wrote.

“Dr. Doyle was terminated after an article he published crticizing the deterrence value of nuclear weapons was retroactively classified. At best, the Department of Energy’s (DOE) classification procedures are too vague to be uniformly applied. At worst, it appears that these classification procedures were used to silence and retaliate against those who express dissenting opinions,” he wrote.

The Doyle case generated significant controversy among his colleagues and others concerned with nuclear security policy.

In response to public concerns, the Department of Energy said it had initiated an Inspector General review of the case. But there has been no known follow-up to date.

In the United States Air Force, “intelligence components do not engage in experimentation involving human subjects for intelligence purposes.”

That unsolicited assurance was reiterated in the latest revision of Air Force Instruction 14-104, Oversight of Intelligence Activities, November 5, 2014.

“For purposes of this instruction, the term ‘human subjects’ includes any person, whether or not such person is a US person. No prisoners of war, civilian internees, retained, and detained personnel as covered under the Geneva Conventions of 1949 may be the subjects of human experimentation.”

The Instruction also addressed domestic imagery collection, reporting of “questionable intelligence activities,” and other topics.

Noteworthy new products from the Congressional Research Service that Congress has withheld from online public distribution include the following.

U.S. Trade Concepts, Performance, and Policy: Frequently Asked Questions, November 17, 2014

Supreme Court Hears Oral Argument in Federal Whistleblower Case, CRS Legal Sidebar, November 14, 2014

Scientific Basis of Environmental Protection Agency (EPA) Actions: H.R. 1422 and H.R. 4012, CRS Insights, November 17, 2014

International Climate Change Financing: The Green Climate Fund (GCF), November 17, 2014

The Battle over Cable Boxes, CRS Insights, November 14, 2014

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Policy Makers, November 14, 2014

Keystone XL Pipeline: Overview and Recent Developments, November 13, 2014

Federal Proposals to Tax Marijuana: An Economic Analysis, November 13, 2014

Childhood Overweight and Obesity: Data Brief, November 13, 2014

Veterans and Homelessness, November 13, 2014

When Will DOD Modernize its Electronic Health Records Systems?, CRS Insights, November 13, 2014:

President Obama’s November 2014 Visit to China: The Bilateral Agreements, CRS Insights, November 13, 2014

Defense: FY2015 Authorization and Appropriations, November 13, 2014

The “no fly” list procedures that are used to prevent individuals who may present a security hazard from flying on commercial aircraft are being revised to make them more transparent and easier to challenge, government attorneys said Friday. They asked a court to suspend a lawsuit disputing the constitutionality of the “no fly” procedures for two months until the revisions are complete.

“The Government… is currently reviewing and revising the administrative redress procedures for denials of boarding,” Justice Department attorneys said in a November 14 memorandum in support of a motion for a stay of proceedings in the lawsuit Gulet Mohamed v. Eric Holder.

“The Government is revising current redress procedures to increase transparency of the process for certain persons denied boarding on commercial aircraft,” the memorandum said.

The government had previously sought dismissal of the entire Gulet Mohamed case on state secrets grounds. That move was rejected by the court. (Secrecy News, October 31.)

The revised “no fly” procedures are expected to be completed and available by January 16, 2015.

Revisions to the “no fly” procedures were initiated in response to another pending lawsuit, Ayman Latif v. Holder, in which the court directed the government to “fashion new procedures that provide Plaintiffs with the requisite due process….”

In response, attorneys in the Latif case said, “the Government will endeavor to increase transparency for certain individuals denied boarding who believe they are on the No Fly List and have submitted DHS TRIP [Traveler Redress Inquiry Program] inquiries, consistent with the protection of national security and national security information, as well as transportation security.” (Their remarks were presented in a status report appended to the new motion for a stay).

With respect to the Gulet Mohamed case, the government said that “Plaintiff’s procedural due process claim will be directly impacted–and potentially mooted–by the Government’s revision of its redress procedures, the exact procedures that Plaintiff alleges to be constitutionally inadequate.”

“For an individual who is on the No Fly List, the development of new procedures may affect the universe of information relied upon in support of the placement decision, or even the placement decision itself. In this way, the revised procedures could affect the nature of the legal claims to be resolved. Moreover, once the revised procedures are in place, Plaintiff’s claims may be moot or, at the least, in need of reformulation should he decide to continue litigating the case.”

“In these circumstances, a stay is appropriate because the revised redress procedures may affect the Government’s need to rely on information subject to the assertion of the state secrets privilege or the need to move again for dismissal,” the November 14 memorandum said.

Attorneys for plaintiff Gulet Mohamed oppose the government motion for a stay, which will be considered by the court at a November 24 hearing. [Update 11/19/14: The court said it would consider the matter without a hearing.]

Related issues were discussed by the Congressional Research Service in “The No Fly List: Procedural Due Process and Hurdles to Litigation,” September 18, 2014.

As of December 2013, there were 47,000 people on the no-fly list, including 800 Americans, the Washington Post reported (“More than 1 million people are listed in U.S. terrorism database” by Adam Goldman, August 5, 2014).

New military doctrine from the Joint Chiefs of Staff “narrows the definition of counterterrorism” to focus on activities designed to neutralize terrorist networks. It excludes actions to “counter root causes” of terrorism, which have now been removed from the definition.

The new publication also “describes the activities of the global special operations network as it relates to CT [counterterrorism],” though without providing much detail. See Joint Publication 3-26, Counterterrorism, 24 October 2014.

Another Joint Chiefs publication introduces a revised framework for “Countering Weapons of Mass Destruction,” replacing the former “combating weapons of mass destruction”. See Joint Publication 3-40, 31 October 2014.