When the internal history of the Manhattan Project was written in 1944, officials still believed — mistakenly — that the atom bomb program had evaded the threat of foreign espionage.

“Espionage attempts were detected but it is felt that prompt action and intensified investigative activity in each case prevented the passing of any substantial amount of Project information,” according to a previously overlooked page from the Manhattan District History that was declassified yesterday.

Although declassification of the official history was thought to have been completed in July of this year (WWII Atom Bomb Project Had More Than 1,500 Leaks, Secrecy News, August 21), a single page had been inadvertently withheld from disclosure.

When its absence was pointed out to Department of Energy classification officials, they expeditiously retrieved the missing page (page 2.4 of Volume 14), declassified it and incorporated it in the published online document.

The newly disclosed page presents a flattering view of Manhattan Project counterintelligence efforts.

“The CIC [Counterintelligence Corps] Special Agents assigned to espionage cases became proficient in all phases of investigation technique. Many of them displayed skill and ingenuity unsurpassed by the most experienced investigators,” the document said.

“Agents impersonated men of all occupations in order to obtain information that would enable them to evaluate a suspect properly. An agent worked as a hotel clerk for over two years while another became bell captain in the few months he worked as a bell hop. Agents have posed as electricians, painters, exterminators, contractors, gamblers, etc.”

Yet their skill and ingenuity were inadequate to the task.  It later became clear that the Manhattan Project had been effectively penetrated by a number of Soviet intelligence agents and sympathizers.

The Department of Energy’s publication of the 36-volume Manhattan Project history itself required an extra measure of devotion. First, the tens of thousands of individual pages, many of them on second- or third-generation carbon paper, were painstakingly reviewed. The Public Interest Declassification Board noted with approval that “these records received a line by line declassification review, rather than being subjected to simple pass/fail determinations.” Then, once that process was completed, each page had to be manually scanned for online publication by the Department of Energy.

Except for a few passages stubbornly redacted by the CIA, the whole document has now emerged from the purgatory of sealed government archives and is now available to anyone who cares to read it.

 

It is entirely proper for a court to conduct in camera review of documents and testimony that the government asserts are subject to the state secrets privilege, said the plaintiffs in a lawsuit challenging the constitutionality of the “no fly” list.

The Justice Department had argued that judicial review of privileged documents was “inappropriate” and asked Judge Anthony J. Trenga of the Eastern District of Virginia to reconsider his order requiring such review. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27.)

But “the state secrets privilege… was never intended to provide the federal government with a blank check to usurp the rights of Americans in novel and profound ways,” countered Gadeir Abbas, attorney for Gulet Mohamed, who is challenging the “no fly” procedure.

“This Court’s August 6th Order [requiring in camera review of the contested documents] is an appropriate exercise of its authority to subject the federal government’s limiting-principle-free assertion of the state secrets privilege to some scrutiny,” Mr. Abbas wrote in his September 5 response.

A ruling from the Court is pending.

Whether the government’s argument prevails or not, Mr. Abbas noted that the 2013 Watchlisting Guidance which the government sought to withhold has been published online by The Intercept.

Attorney General Holder “had asserted the state secrets privilege over this document, but because it is now publicly available, the Court can consider it in its entirety,” he wrote.

The so-called Take Care Clause in the U.S. Constitution (requiring that the President “shall take Care that the Laws be faithfully executed….”) “would appear to stand for two, at times diametrically opposed propositions–one imposing a ‘duty’ upon the President and the other viewing the Clause as a source of Presidential ‘power’,” according to a new study from the Congressional Research Service. See The Take Care Clause and Executive Discretion in the Enforcement of Law, September 4, 2014.

Other recent CRS products obtained by Secrecy News include the following.

The Doctrine of Constitutional Avoidance: A Legal Overview, September 2, 2014

Armed Conflict in Syria: Overview and U.S. Response, updated September 8, 2014

Libya: Transition and U.S. Policy, updated September 8, 2014

Asylum and Gang Violence: Legal Overview, September 5, 2014

Defense Surplus Equipment Disposal, Including the Law Enforcement 1033 Program, updated September 5, 2014

Aviation War Risk Insurance: Background and Options for Congress, September 5, 2014

Medal of Honor: History and Issues, updated September 5, 2014

Protection of Trade Secrets: Overview of Current Law and Legislation, September 5, 2014

China’s Leaders Quash Hong Kong’s Hopes for Democratic Election Reforms, CRS Insights, September 5, 2014

NASA’s orbiting James Webb Space Telescope will be “the premier observatory of the next decade, serving thousands of astronomers worldwide, and studying every phase in the history of our Universe, ranging from the first luminous glows after the Big Bang, to the formation of solar systems capable of supporting life on planets like Earth, to the evolution of our own Solar System.”

So why does its Director need to have a Top Secret/SCI security clearance, as specified in the job description posted last month on USA Jobs?

Clearly, the secrets of the universe do not lend themselves to, or require, national security classification controls, let alone non-disclosure agreements or polygraph testing.

But in practice, the civilian space program intersects the national security space program at multiple points, and former CIA analyst Allen Thomson suggested that the future Webb Director might need a Top Secret intelligence clearance in order to engage with the National Reconnaissance Office on space technology and operations, for example.

The Webb Space Telescope “will complement and extend the discoveries of the Hubble Space Telescope, with longer wavelength coverage and greatly improved sensitivity,” according to NASA. “The longer wavelengths enable the Webb telescope to look much closer to the beginning of time and to hunt for the unobserved formation of the first galaxies, as well as to look inside dust clouds where stars and planetary systems are forming today.”

The Webb Telescope has a projected launch date in 2018.

As Congress plumbs new depths of futility and irrelevance, analysts at the Congressional Research Service continue to churn out policy-relevant studies that are informative and free of partisan embellishment. How long can it be until they are punished?

The latest CRS products that Congress has withheld from online public access include the following.

Pakistan Political Unrest: In Brief, September 3, 2014

The “1033 Program,” Department of Defense Support to Law Enforcement, August 28, 2014

Special Immigrant Juveniles: In Brief, August 29, 2014

Unaccompanied Children from Central America: Foreign Policy Considerations, August 28, 2014

The Islamic State in Syria and Iraq: A Possible Threat to Jordan?, CRS Insights, August 28, 2014

The Quadrennial Diplomacy and Development Review (QDDR), August 27, 2014

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations, August 28, 2014

A Primer on the Reviewability of Agency Delay and Enforcement Discretion, September 4, 2014

Congressional Participation in Article III Courts: Standing to Sue, September 4, 2014

The Elder Justice Act: Background and Issues for Congress, September 3, 2014

Common Core State Standards and Assessments: Background and Issues, September 2, 2014

Designating Systemically Important Financial Institutions (SIFIs), CRS Insights, August 28, 2014

Social Security: What Would Happen If the Trust Funds Ran Out?, August 28, 2014

The National Earthquake Hazards Reduction Program (NEHRP): Issues in Brief, August 27, 2014

“Dark Pools” In Equity Trading: Significance and Recent Developments, CRS Insights, August 27, 2014

Can Body Worn Cameras Serve as a Deterrent to Police Misconduct?, CRS Insights, August 28, 2014

The current outbreak of Ebola virus disease in West Africa has infected and killed more people than all previous outbreaks combined.

A new report from the Congressional Research Service provides detailed background on the spread of the disease, the weaknesses of the health care infrastructure in the affected countries, and related policy issues for congressional consideration. See The 2014 Ebola Outbreak: International and U.S. Responses, August 26, 2014.

Next week, NATO leaders will hold their first meeting since Russia’s military intervention in Ukraine. A new CRS report offers a preview of the meeting’s anticipated agenda and objectives. See NATO’s Wales Summit: Expected Outcomes and Key Challenges, August 26, 2014.

Some other CRS products that have been recently updated include the following.

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, August 26, 2014

Membership of the 113th Congress: A Profile, August 26, 2014

Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly, August 26, 2014

Time out: Secrecy News will be back the week of September 8.

It is “not appropriate” for a court to conduct its own independent review of evidence that the government asserts is protected by the state secrets privilege, attorneys for the government argued last week.

They were objecting to an order that was issued in a lawsuit challenging the constitutionality of the “no fly” list in the case of Gulet Mohamed v. Eric Holder. On August 6, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to submit for in camera review a copy of all documents and testimony relevant to the case that it asserts fall under the state secrets privilege.

Instead, government attorneys asked Judge Trenga in an August 22 motion to reconsider his order “on the ground that the required submission [of assertedly privileged material] is not appropriate or necessary for evaluation of whether the state secrets privilege should be upheld or whether dismissal is necessary, in light of the information already provided to the Court on those issues.”

“The Government has provided… a thorough description of the harm to national security that would result from the disclosure of the privileged information. The additional submissions ordered by the Court would not assist in that determination,” they added.

But the kind of in camera review that the government attorneys objected to is actually among the “best practices” that should be adopted in all state secrets cases, according to a 2008 Senate Judiciary Committee report on the State Secrets Protection Act, a bill that was intended to regulate the use of the privilege.

The Act, introduced by the late Sen. Edward Kennedy, the late Sen. Arlen Specter, and Sen. Patrick Leahy, would have “instruct[ed] courts to avoid excessively deferential standards of review and to retain full control over privilege determinations.”

Among other requirements, the Act required that “The Government must make all evidence it claims is subject to the privilege available for the court to review…. If the Government refuses to turn over evidence or to provide a non-privileged substitute ordered by the court, the court will resolve the relevant issue of fact or law against the Government.”

The Act’s provision for in camera judicial review of privileged materials “makes crystal-clear that the court, not the executive branch, determines which items of evidence are privileged,” the Senate report said. “It requires the court to consider the actual evidence, rather than rely on Government affidavits or representations about the evidence, in making this determination.”

This is one of the steps needed to resolve “the crisis of legitimacy currently surrounding the [state secrets] privilege,” the Senate report said.

However, several Republican Senators on the Judiciary Committee disputed the need for the State Secrets Protection Act. They said in dissenting views appended to the report that the right balance had already been struck. The Act was never enacted into law and no other guidance on the use of the privilege has emerged from Congress.

Therefore, it will be up to Judge Trenga and his judicial colleagues to determine the proper scope and application of the state secrets privilege in each individual case.

Attorneys for the Plaintiff Gulet Mohamed said that they would oppose the government’s motion for reconsideration.

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

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, updated August 20, 2014

The “Militarization” of Law Enforcement and the Department of Defense’s “1033 Program”, CRS Insights, August 20, 2014

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, updated August 21, 2014

Clean Coal Loan Guarantees and Tax Incentives: Issues in Brief, August 19, 2014

The Manhattan Project to develop the first atomic bomb during World War II was among the most highly classified and tightly secured programs ever undertaken by the U.S. government. Nevertheless, it generated more than 1,500 leak investigations involving unauthorized disclosures of classified Project information.

That remarkable fact is noted in the latest declassified volume of the official Manhattan District History (Volume 14, Intelligence & Security) that was approved for release and posted online by the Department of Energy last month.

In several respects, the Manhattan Project established the template for secret government programs during the Cold War (and after). It pioneered or refined the practices of compartmentalization of information, “black” budgets, cover and deception to conceal secret facilities, minimal notification to Congress, and more.

But wherever there are national security secrets, it seems that leaks and spies are not far behind.

During the course of the Manhattan Project, counterintelligence agents “handled more than 1,000 general subversive investigations, over 1,500 cases in which classified project information was transmitted to unauthorized persons, approximately 100 suspected espionage cases, and approximately 200 suspected sabotage cases,” according to the newly declassified history (at pp. S2-3).

Most of the 1,500 leak cases seem to have been inadvertent disclosures rather than deliberate releases to the news media of the contemporary sort. But they were diligently investigated nonetheless. “Complete security of information could be achieved only by following all leaks to their source.”

In 1943, there were several seemingly unrelated cases of Protestant clergymen in the South preaching sermons that alarmingly cited “the devastating energy contained in minute quantities of Uranium 235” (while contrasting it with “the power of God [that] was infinitely greater”). The sermons were eventually traced back to a pamphlet distributed by a Bible college in Chicago, which was determined to be harmless. Other disclosures cited in the history involved more serious indiscretions that drew punitive action.

“Since September 1943, investigations were conducted of more than 1500 ‘loose talk’ or leakage of information cases and corrective action was taken in more than 1200 violations of procedures for handling classified material,” the history said (p. 6.5).

“Upon discovery of the source of a violation of regulations for safeguarding military information, the violator, if a project employee, was usually reprimanded, informed of the possible application of the Espionage Act, and warned not to repeat the violation.”

Fundamentally, however, information security was not to be achieved by the force of law or the threat of punishment. Rather, it was rooted in shared values and common commitments, the Project history said.

“Grounds for protecting information were largely patriotism, loyalty to the fighting men, and the reasoning that the less publicity given the Project, the more difficult it would be for the enemy to acquire information about it and also, the greater would be the element of surprise” (p. 6.13).

The only other remaining portion of the official history, Foreign Intelligence Supplement No. 1 to Manhattan District History Volume 14, was also published online last month. It provided an account of U.S. wartime intelligence collection aimed at enemy scientific research and development. Some information in that volume was deleted by the Central Intelligence Agency.

The entire thirty-six volume Manhattan District history has now been declassified and posted online.

The threat of domestic terrorism is receiving greater attention at the Department of Justice with the reestablishment in June of the Domestic Terrorism Executive Committee, the Congressional Research Service noted last week.

“The reestablishment suggests that officials are raising the profile of domestic terrorism as an issue within DOJ after more than a decade of heightened focus on both foreign terrorist organizations and homegrown individuals inspired by violent jihadist groups based abroad,” CRS wrote. See Domestic Terrorism Appears to Be Reemerging as a Priority at the Department of Justice, CRS Insights, August 15, 2014.

Other new or updated CRS products include the following.

Latin America: Terrorism Issues, updated August 15, 2014:

Cuba: U.S. Restrictions on Travel and Remittances, updated August 19, 2014:

Preparing for Disasters: FEMA’s New National Preparedness Report Released, CRS Insights, August 12, 2014

Export-Import Bank Reauthorization Debate, CRS Insights, August 18, 2014:

Environmental Protection Agency (EPA): Appropriations for FY2014 in P.L. 113-76, August 15, 2014:

Senate Unanimous Consent Agreements: Potential Effects on the Amendment Process, updated August 15, 2014

Synthetic Drugs: Overview and Issues for Congress, updated August 15, 2014

The plaintiff in a lawsuit challenging the use of the “no fly list” to bar a US citizen from boarding an aircraft said last week that he would introduce a leaked copy of the government’s Watchlisting Guidance “to show just how objectionable and evidence-free Defendants’ watch listing process is.”

The government said it did not acknowledge the authenticity of the leaked document, and that the case should be dismissed since the Attorney General had invoked the state secrets privilege concerning core issues that it raised.

The lawsuit was filed by the Council on American-Islamic Relations (CAIR) on behalf of Gulet Mohamed, who said his constitutional rights had been violated by placing him on the no fly list.

In May 2014, Attorney General Eric Holder filed a declaration asserting the state secrets privilege over documents and information that it said would be needed to litigate the case, and the government moved for dismissal of the entire matter.

Among other things, the Attorney General said that the state secrets privilege extended to the current Watchlisting Guidance that spells out the criteria and procedures for placing an individual on the no fly list.

“The Guidance sets forth, in detail, the Government’s comprehensive watchlist scheme related to the identification and placement of individuals in terrorism screening watchlists,” AG Holder wrote in his May 27, 2014 declaration asserting the privilege.

“If the Guidance were released, it would provide a clear roadmap to undermine the Government’s screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security,” he wrote.

But then last month, the online publication The Intercept reported on the Watchlisting Guidance and published the document itself. (The Secret Government Rulebook for Labeling You a Terrorist by Jeremy Scahill and Ryan Devereaux, July 23.)

In an August 15 statement to the Court, the CAIR attorneys for Gulet Mohamed said that they would file a copy of the Guidance and another leaked document in a Notice this week.

“Plaintiff will argue that this document is relevant, not only to show just how objectionable and evidence-free Defendants’ watch listing process is, but also to how this Court handles Defendants’ state secrets privilege,” the attorneys wrote.

In the same August 15 statement, the government said it would not confirm that the documents to be filed by CAIR are authentic, or even that they had actually been leaked.

“Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course,” attorneys for the government stated.

While withholding confirmation, however, they have stopped short of affirmatively disputing that the documents are authentic.

The Gulet Mohamed case is believed to be the most recent instance of the government’s use of the state secrets privilege.

In a 2011 report to Congress, the Justice Department had said it would try not to employ the privilege in a way that would require dismissal of an entire complaint.

“While invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”

But in this case, the government told the Court that nothing short of complete dismissal would do.

“If the Attorney General’s privilege assertion is upheld, as it should be, the law requires that the Court then consider the consequences of the exclusion of the privileged information,” the Department said in a May 28 memo elaborating its position. “Here, because properly protected national security information would go to the core of the claims and defenses, this case cannot proceed in the absence of that information, and, under established Fourth Circuit authority, the case must be dismissed.”

Attorneys for the plaintiff disputed that view, and said the case could and should proceed.

“Simply put, just as federal courts in Latif and Ibrahim [other cases involving the no fly list] found a way to litigate the merits of No Fly List claims without imperiling state secrets, this Court can do so here as well,” the CAIR attorneys wrote in a July 7 rejoinder. “Though Plaintiff will seek additional non-privileged information from Defendants, it is important to note at the outset that Plaintiff can, if need be, litigate this case without further discovery from Defendants,” they wrote.

The case is being heard by Judge Anthony J. Trenga of the Eastern District of Virginia. He has yet to rule on the pending Government motion for dismissal on state secrets grounds.

In a move that may imply a degree of skepticism concerning the proposed application of the privilege, Judge Trenga ordered the government to submit for in camera review a copy of all documents and a summary of all testimony relevant to the case that it asserts fall under the state secrets privilege. The materials are to be provided to the Court under seal by September 7, Judge Trenga wrote in an August 6 order.

For further background, see 2008 Obama Would Have Slammed 2014 Obama for This Government Secrecy Case by Nick Baumann, Mother Jones, July 14, 2014; and Over Government Objections, Rules on No-Fly List Are Made Public by Charlie Savage, New York Times, July 23, 2014.

Nearly two years after President Obama issued a National Insider Threat Policy “to strengthen the protection and safeguarding of classified information” against espionage or unauthorized disclosure, the effort is still at an early stage of development.

Only last week, the U.S. Air Force finally issued a directive to implement the 2012 Obama policy. (AF Instruction 16-1402, Insider Threat Program Management). And even now it speaks prospectively of what the program “will” do rather than what it has done or is doing.

The new Air Force Instruction follows similar guidance issued last year by the Army and the Navy.

The Air Force Insider Threat Program includes several intended focus areas, including continuous evaluation of personnel, auditing of government computer networks, and procedures for reporting anomalous behavior.

“Procedures must be in place that support continuous evaluation of personnel to assess their reliability and trustworthiness,” the AF Instruction says.

Such continuous evaluation procedures may eventually sweep broadly over many domains of public and private information, but they are not yet in place.

“There are a number of ongoing pilot studies to assess the feasibility of select automated records checks and the utility of publicly available electronic information, to include social media sites, in the personnel security process,” said Brian Prioletti of the Office of the Director of National Intelligence in testimony before the House Homeland Security Committee last November.

The Air Force directive also encourages reporting of unusual behavior by potential insider threats.

“Insider threat actors typically exhibit concerning behavior,” the directive says. But this is not self-evidently true in all cases, and the directive does not provide examples of “concerning behavior.”

A Department of Defense training module recently identified expressions of “unhappiness with U.S. foreign policy” as a potential threat indicator, the Huffington Post reported last week. (“Pentagon Training Still Says Dissent Is A Threat ‘Indicator'” by Matt Sledge, August 4.) If so, that criterion would not narrow the field very much.

The “CORRECT Act” (HR5240) that was introduced last month by Rep. Bennie Thompson and Sen. Ron Wyden would require any insider threat program to meet certain standards of fairness and employee protection, and “to preserve the rights and confidentiality of whistleblowers.”

That message may have been partially internalized already. The terms “civil liberties” and “whistleblowers” are each mentioned four times in the eight-page Air Force Instruction.