Polygraph testing is here to stay, judging from a new directive issued by Director of National Intelligence James Clapper. The directive governs the use of polygraph testing in vetting executive branch agency personnel for security clearances or determining their eligibility for “sensitive” positions.

The new Security Executive Agent Directive 2 on the use of the polygraph was obtained by Marisa Taylor of McClatchy News, who has done a series of in-depth news reports on polygraph testing over the past couple of years.

The directive does not seem to entail any major departures from current polygraph policy, but it has several noteworthy features.

Above all, it signals that polygraph testing is not going away. Despite significant skepticism among scientists about the validity of using the polygraph for employee screening, the directive envisions continued reliance on polygraph testing. It states that agencies may even “expand an existing polygraph program” or “establish a new program.”

The directive also represents the further consolidation of the authority of the DNI in his capacity as “Security Executive Agent.” The new directive applies to all executive branch agencies, not just those that are formally members of the U.S. intelligence community.

Finally, among all the possible occasions for use of polygraph testing, the directive singles out “espionage, sabotage, [and] unauthorized disclosure of classified information,” suggesting that these diverse offenses are of comparable significance and concern.

In another recent issuance, the Office of the Director of National Intelligence produced a Strategy and Schedule for Security Clearance Reciprocity in response to a congressional mandate. Reciprocity here refers to the mutual recognition by executive branch agencies of each other’s security clearance approvals, which has been a longstanding but elusive goal.

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

Instances of Use of United States Armed Forces Abroad, 1798-2014, September 15, 2014

American Foreign Fighters and the Islamic State: Broad Challenges for Federal Law Enforcement, CRS Insights, September 19, 2014

Man without a Country? Expatriation of U.S. Citizen “Foreign Fighters”, Legal Sidebar, September 15, 2014

Proposed Train and Equip Authorities for Syria: In Brief, September 16, 2014

Climate Summit 2014: Warm-Up for 2015, CRS Insights, September 22, 2014

Lame Duck Sessions of Congress, 1935-2012 (74th-112th Congresses), September 19, 2014

Poverty: Major Themes in Past Debates and Current Proposals, September 18, 2014

The U.S.-South Korea Free Trade Agreement (KORUS FTA): Provisions and Implications, September 16, 2014

Cyprus: Reunification Proving Elusive, September 22, 2014

Russia’s Compliance with the INF Treaty, CRS Insights, September 18, 2014

The No Fly List: Procedural Due Process and Hurdles to Litigation, September 18, 2014

The Department of Energy will review its classification standards to improve their clarity and to eliminate possible ambiguities, the Administrator of the National Nuclear Security Administration told the Federation of American Scientists this week.

The issue arose in response to the case of James Doyle, a Los Alamos political scientist who published an article on nuclear weapons policy that was initially cleared for publication, but then was said to contain classified information. Doyle’s employment at Los Alamos was later terminated in what was perceived by some to be an act of retaliation. (See Nuclear weapons lab employee fired after publishing scathing critique of the arms race by Douglas Birch, Center for Public Integrity, July 31, 2014.)

“It should not be possible for two reviewers to reach opposing conclusions as to whether a manuscript contains classified information or not,” wrote FAS President Charles D. Ferguson in an August 21 letter to Energy Secretary Ernest Moniz. “But that is apparently what happened” in the Doyle case.

“Accordingly, we urge you to direct that the relevant classification guidance be reviewed and clarified to eliminate all potential ambiguity of the sort that was on display here,” the FAS letter said.

“That is a worthwhile and welcome suggestion,” replied NNSA Administrator Frank G. Klotz on September 15, “and we will undertake such a review as well.”

“The Department of Energy fully subscribes to the principle and importance of academic freedom at our laboratories, and will not tolerate retaliation against nor dismissal of employees or contractors based on the opinions they express in scholarly publications and presentations.”

“Without commenting on the particulars of Mr. Doyle’s case, I have asked the Department’s Inspector General to examine whether Mr. Doyle’s termination resulted in whole or in part from the publication of an article he authored,” Gen. Klotz wrote.

(See related stories in The Daily Beast, Albuquerque Journal.)

When the government intervened in a private lawsuit to assert the state secrets privilege and to seek dismissal of the entire proceeding (Secrecy News, September 15), it acted improperly and misused the state secrets privilege, the attorney for the plaintiff in the case told the Court yesterday.

“The Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment,” wrote Abbe D. Lowell, the plaintiff’s attorney in Restis v. United Against Nuclear Iran.

Specifically, by refusing to identify the subject or scope of the privileged information, or even the agency that was asserting the privilege, the government has “violate[d] any semblance of due process” and “prevent[ed] the opposing party from understanding the claim in any fashion,” he wrote.

The Government says that “the identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters,” according to a memorandum filed September 12.

But Mr. Lowell asked the Court to order the Government to file a public declaration in support of its privilege claim so that the Plaintiff could offer a substantive rebuttal.

“In the typical state secrets case, the Government will simultaneously file both a sealed ex parte declaration and a detailed public declaration,” Mr. Lowell noted. “The Government has not offered any explanation as to why it cannot do so here. [In other state secrets cases,] there always is some way for the Government to identify the nature of its privilege claim without disclosing the privileged information itself.”

“Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government’s claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case.”

“In every other case of which we are aware, the Government made sufficient public disclosure of the nature of the state secrets and its reasons for seeking dismissal to allow those claims to be tested, and all Plaintiffs ask is that the Government do so here, so that Plaintiffs can then respond adequately to the actual motions filed,” Mr. Lowell wrote.

“The Plaintiffs plan to advance their claims without using any state secrets,” he noted, “and it is not clear how state secrets could be relevant to the defense.”

The Central Intelligence Agency has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence, in an effort to settle a lawsuit brought by a former employee, Jeffrey Scudder. Until lately, the CIA had resisted release of the requested articles in softcopy format (Secrecy News, March 17), but the Agency eventually relented.

“Of the 419 documents that remain in dispute in Scudder, the CIA has produced 249 in full or in part by putting them up on the CIA website,” the government informed Mr. Scudder’s attorney, Mark S. Zaid, this week. They are posted here. [Update: The preceding link is dead. CIA has integrated the Scudder release into this larger collection of declassified Studies articles].

The newly posted articles cover a wide range of topics, and vary considerably in substance and originality. The CIA said that 170 other articles sought by Scudder had been withheld in full.

Jeffrey Scudder was profiled recently in the Washington Post (CIA employee’s quest to release information ‘destroyed my entire career’ by Greg Miller, July 4, 2014).

Over the objections of government attorneys, a federal judge said yesterday that he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the “no fly” list.

The government had argued that it is “inappropriate” for a court to review such records to verify that they are validly privileged, and that instead the court should grant dismissal of case on the basis of official declarations. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27). The government moved for reconsideration of an August 6 order to produce the records for in camera review.

Yesterday, Judge Anthony J. Trenga of the Eastern District of Virginia granted the government’s motion for reconsideration, but he said that having reconsidered the matter, he determined that he had been right the first time around.

“Upon reconsideration of its Order, however, the Court finds that none of [the] objections justifies vacating the Order, as the defendants request. The Court therefore affirms its Order.”

“This case involves complex and unsettled issues pertaining to the respective roles of the legislative, executive and judicial branches,” Judge Trenga wrote. “One central issue is the extent to which the War on Terrorism may expand the ability of the executive branch to act in ways that cannot otherwise be justified.”

The Court “understands its limited institutional competence to assess claims of national security and its obligation not to extend its review of claims of state secrets beyond what is necessary for the Court to perform its institutional role,” Judge Trenga wrote. Nevertheless, under current circumstances “the Court concludes that it is necessary for the Court to review at this stage certain of the underlying documents as to which the state secrets privilege is asserted.”

“This case involves the extraordinary exercise of executive branch authority to operate a program [the “no fly” procedure] that results in the deprivation of basic liberties according to secret executive branch decision making, without pre-deprivation judicial review…. [Therefore,] the Court has a particularly strong and heightened institutional responsibility in these circumstances to review and assess the propriety of such executive branch activity since to dismiss this case as the defendants request would, in essence, judicially sanction conduct that has far-reaching implications.”

Merely relying on government assertions of privilege without independent review of their basis and validity is inadequate since “In many instances, the privilege claims are conclusory, and it is difficult, if not impossible, to assess the merits of those claims….”

“The Court therefore cannot accept, without further inquiry and review, that all of the documents as to which the state secrets privilege has been invoked in fact contain state secrets, or that any state secrets that might be contained in the listed documents would preclude the litigation of the plaintiff’s claims…,” Judge Trenga wrote.

He ordered the government to produce the relevant documents for in camera review on or before October 15, 2014.

In a footnote, Judge Trenga’s Order contains a rare judicial acknowledgment that “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”

The U.S. Government asserted the state secrets privilege last week in a private lawsuit to which the government is not a party and moved for dismissal of the case.

Greek businessman Victor Restis had filed a lawsuit last year against the private advocacy group United Against Nuclear Iran (UANI), alleging that the group had falsely and maliciously accused Restis of engaging in illict commerce with Iran. UANI, whose advisory board includes numerous former government officials, said the Restis complaint was “meritless.”

On Friday, an unidentified agency within the U.S. Government asserted the state secrets privilege in the case, for reasons that were not disclosed, and asked the court to dismiss the entire proceeding.

“A formal claim of privilege has been asserted by the head of the concerned federal agency based upon his or her personal consideration of the matter,” according to an unclassified memorandum filed by the government. “The identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters.”

“Further, while the United States takes this position reluctantly and only after careful consideration, the only appropriate course in light of this privilege assertion is to dismiss this action in its entirety,” the government memorandum said.

This is a peculiar and seemingly illogical state of affairs, according to Abbe D. Lowell, attorney for the plaintiff Victor Restis.

He told the court in an April letter that there are three possible categories of documents at stake in the case: “(1) those created by UANI itself; (2) those received from third parties other than the Government; and (3) those received from the Government itself.”

“No privilege can apply to the first two categories,” Mr. Lowell wrote, “and with respect to the third category, any privilege that could have applied has been waived if the Government gave them to Defendants.”

Meanwhile, because of the assertion of privilege, Mr. Lowell wrote in a June letter, “Defendants [UANI] do not have to defend their conduct because they can hide behind the U.S. Government and refuse to produce the bulk of relevant documents.”

The government acknowledged in its privilege memorandum that its proposal to dismiss the case on state secrets grounds was unfair to the parties, but it said that it was the lesser of two evils.

“Although dismissal of claims is undeniably a harsh result, ‘the results are harsh in either direction’ because harm to national security is also at issue, and ‘the state secret doctrine finds the greater public good — ultimately the less harsh remedy — to be dismissal.”

Furthermore, “dismissal should not be taken to mean that any of the alleged defamatory statements concerning the plaintiffs and their activities that are at issue in this lawsuit are either true or false,” the government memorandum said. “Dismissal … is not being sought by the United States on behalf of the defendants, and should not be understood to reflect a favorable or unfavorable determination as to the the truth or falsity of defendants’ statements…. Rather, the privilege is being asserted, and dismissal is being sought by the United States, solely to protect against a reasonable danger of harm to national security interests.”

Although an assertion of the state secrets privilege in private litigation is unusual, it is not unheard of. A 2011 review of pending cases by the Department of Justice said that “Several of the cases in which the privilege was invoked involved purely private litigation — not challenges to Executive Branch conduct.”

The Justice Department’s 2009 revision of its policy on asserting the state secrets privilege has had little visible impact. There has been no known case in which assertion of the privilege was “narrowly tailored” to permit an affected lawsuit to proceed, as the revision proposed. Nor is there any known case in which a privileged matter has been referred to an agency Inspector General for adjudication, as had been suggested. As for the Department’s commitment to provide “periodic reports” to Congress on use of the privilege, it has yielded only a single such report, more than three years ago.

According to a newly declassified White House policy directive, counterterrorism policy has yielded “an increased rate of renditions, apprehensions, and convictions of terrorists,” as well as “a significant expansion of counterterrorism legislative authorities” and “a large increase in counterterrorism funding.”

But that White House directive — Presidential Policy Directive 62, Protection Against Unconventional Threats to the Homeland and Americans Overseas — was issued by President Bill Clinton, and dates from May 22, 1998.

Even the title of the directive, with its early use of the oddly dissonant term “homeland” to refer to the United States, suggests a greater continuity of government policy before and after 9/11 than may be generally recognized.

According to an unclassified White House fact sheet published at the time, “This Directive creates a new and more systematic approach to fighting the terrorist threat of the next century.  It reinforces the mission of the many U.S. agencies charged with roles in defeating terrorism; it also codifies and clarifies their activities in the wide range of U.S. counter-terrorism programs, from apprehension and prosecution of terrorists to increasing transportation security, enhancing response capabilities and protecting the computer-based systems that lie at the heart of America’s economy.”

The text of the Directive remained classified until March of this year, when it was declassified by the Interagency Security Classification Appeals Panel (thanks to an unidentified requester). It was made available through the Clinton presidential library.

New products from the Congressional Research Service that have been withheld from online public distribution include the following.

Iraqi and Afghan Special Immigrant Visa Programs, September 12, 2014

The Federal Trade Commission’s Regulation of Data Security Under Its Unfair or Deceptive Acts or Practices (UDAP) Authority, September 11, 2014

Diplomatic and Embassy Security Funding Before and After the Benghazi Attacks, September 10, 2014

The continuing prominence of special operations as an instrument of U.S. force projection is creating requirements for “revolutionary, game changing” new technologies and fostering the development of solutions to those requirements.

Adm. William H. McRaven, commander of U.S. Special Operations Command until last month, told the House Armed Services Committee in two newly published hearing volumes that a range of new technologies are under development by SOCOM, including laser weapons, new emergency medicine techniques, color night vision, and more.

“USSOCOM is currently pursuing directed energy systems as a non-kinetic, stand-off anti-materiel solution. We have a requirement to surgically disable or disrupt a variety of fixed facility infrastructure and systems, with required capabilities ranging from breaching and access to disablement of critical equipment. The Man Portable High Energy Laser is one of several technologies under consideration for this critical mission,” Adm. McRaven wrote in response to questions for the record from a March 2014 hearing.

Emergency medical response is another concern. “Uncontrolled external hemorrhage remains the leading cause of death on the battlefield. Despite recent advances in hemorrhage control technologies, controlling the bleeding in large wounds (‘sharkbite’) remains difficult and a SOCOM Commander top priority. A ‘Sharkbite’ project developed a novel wound stasis dressing to treat SOF non-compressible hemorrhagic injuries. The ‘SharkBite Trauma Kit’ includes three revolutionary tools that are now pending FDA approval before transition to USSOCOM’s PEO–SOF Warrior’s Tactical Combat Casualty Care Program of Record and SOF medics.”

“Some of our most difficult advanced technology requirements include personal protection, signature management, first pass lethality, and color night vision,” Adm. McRaven wrote in response to questions from another hearing in February.

“USSOCOM… is leading the development of a series of technologies necessary to construct a Tactical Assault Light Operator Suit (TALOS) in order to increase Special Operations Forces survivability…. The development of powered exoskeletons, advanced armor, and lightweight power generation and distribution systems have wide-ranging potential uses…. It is envisioned that novel ballistic materials, advanced power storage systems, and exoskeleton advancements will be made available to other DOD and Federal agencies prior to the fielding of the TALOS prototype.”

“Our adversary’s capabilities continue to evolve and improve. To maintain our edge on the battlefield SOF needs comprehensive signature management in all environments to avoid detection. We are evaluating novel technologies to provide SOF aircrews and their platforms with first pass lethality by rapidly acquiring ballistic wind data for vastly increased accuracy of unguided weapon systems.”

“Finally, maintaining our tactical advantage at night will require revolutionary, game changing capabilities like color night vision. The goal of our color night vision effort is to provide the SOF operator the ability to see true color on a moonless night with just starlight–a tremendous tactical advantage,” Adm. McRaven wrote.

With or without such advantages, however, “I would be concerned about thinking that the special operations community is the panacea for all our problems,” Adm. McRaven testified in February. “We are not.”

 

A new report from the Congressional Research Service considers the legal underpinning of U.S. military action against the so-called Islamic State, including the sources and limits of presidential authority, and the relevance of past Authorizations for Use of Military Force. See U.S. Military Action Against the Islamic State: Answers to Frequently Asked Legal Questions, September 9, 2014.

See also Considerations for Possible Authorization for Use of Military Force Against the Islamic State, CRS Insights, September 9, 2014, and The “Islamic State” Crisis and U.S. Policy, September 10, 2014.

Other new or newly updated CRS products include the following.

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, updated September 9, 2014

U.S. Foreign Assistance to Latin America and the Caribbean: Recent Trends and FY2015 Appropriations, September 10, 2014

Export-Import Bank Reauthorization: Frequently Asked Questions, updated September 10, 2014

DOJ & Bank of America Enter Biggest Civil Settlement in U.S. History, CRS Legal Sidebar, September 10, 2014

Freedom of Speech and Press: Exceptions to the First Amendment, updated September 8, 2014

Most of the national security agencies in the executive branch have now been granted approval to exempt certain 50 year old classified information from automatic declassification.

The national security classification system normally requires declassification of classified documents as they become 25 years old, with several specified exemptions to allow continued classification up to 50 years.

Only “in extraordinary cases” may agency heads propose to exempt information from declassification when it is 50 years old, says President Obama’s 2009 executive order 13526. They must request and receive approval from the Interagency Security Classification Appeals Panel (ISCAP).

So it was somewhat disconcerting to see an updated Notice from the Information Security Oversight Office last week indicating that dozens of executive branch agencies have now been granted exemptions from declassification for 50 year old information, including all of the major national security agencies. The United States Mint, among others, was even granted an exemption for 75 year old classified information.

It appeared that the extraordinary had become quite ordinary.

But that initial impression is not correct, said John P. Fitzpatrick, director of the Information Security Oversight Office, which oversees the national security classification system.

In the first place, the exemptions from declassification are limited to specific categories of information that the ISCAP was persuaded “would clearly and demonstrably cause damage to national security.”

“Blanket exemptions were not approved,” Mr. Fitzpatrick said.

And proposed exemptions for particular categories of information were critically reviewed by the ISCAP members, he said. “They often required agencies to make specific changes to their proposed declassification guide before granting approval.”

Because the ISCAP is a presidential body (of which he is the Executive Secretary), Mr. Fitzpatrick said he could not provide detailed information about its deliberative process. But he responded to several questions on the subject in general terms.

“During the evaluation of agency exemptions the ISCAP required that certain agencies significantly narrow their submissions,” he said. “In some cases, the ISCAP required that an agency remove a requested exemption element.”

Moreover, exemption from “automatic declassification” does not necessarily mean exemption from declassification altogether. Individual “records exempted from automatic declassification remain subject to mandatory declassification review,” he noted.

Why does the U.S. Mint need an exemption from declassification for 75 year old information? Is it some sort of anti-counterfeiting issue? No, he said, that’s not it.

The U.S. Mint declassification exemption, “which is perhaps the most [narrowly] targeted of all ISCAP-approved exemptions,” applies solely to “security specifications from the U.S. Bullion Depository at Fort Knox, which was built in the late 1930s,” Mr. Fitzpatrick said.

“Think ‘Goldfinger’,” he said.