Former State Department contractor Stephen Kim pleaded guilty on Friday to one count of unauthorized disclosure of national defense information to a Fox News reporter. Following a sentencing hearing in April, he is expected to serve a 13 month term in prison. (WashPost, NYT, Politico).

The plea was an abrupt departure from previous defense strategy. As recently as last month, Mr. Kim’s attorneys had argued that it was “the defense’s theory that the alleged disclosure to Fox News emanated from senior officials at the National Security Council or the White House, and not from a lower level employee like Mr. Kim” (Defendant’s Seventh Motion to Compel, January 17, 2014, page 5).

But in a February 3 Statement of Offense signed by the defendant, Mr. Kim acknowledged that he had “orally disclosed to Reporter A [James Rosen of Fox News] TS//SCI national defense information… specifically about the military capabilities and preparedness of North Korea.”

The two positions are not necessarily contradictory. “Stephen did not reveal any intelligence ‘sources’ or ‘methods’,” said his defense attorney Abbe Lowell in a February 7 statement. “He did not provide any documents or electronic data to anyone. He did not pay for or receive payment for his actions.”

Moreover, Mr. Lowell said, “news reports from the same day demonstrate that Stephen was not the only government employee discussing the topic at issue. Stephen may have told the reporter what the reporter already knew from others, but Stephen was the only one charged.”

The case against Mr. Kim stemmed from a June 11, 2009 Fox News story (“North Korea Intends to Match U.N. Resolution With New Nuclear Test” by James Rosen).

That story stated that “Pyongyang’s next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take….” The brief but startling reference to “sources inside North Korea” appeared to refer to CIA human intelligence sources within the DPRK, potentially placing any such sources at heightened risk.

If that short phrase had not been published, it is doubtful that the Fox News story would have triggered a full-fledged leak investigation, or that Mr. Kim would have been prosecuted as a result.

In other words, because Fox News reported and edited the story in such a questionable way, it deserves a share of the responsibility both for any compromise of U.S. intelligence capabilities that may have occurred, and for Mr. Kim’s unhappy fate. (As noted above, Mr. Kim’s defense denies that he revealed any intelligence sources and methods.)

Unfortunately, this kind of carelessness on the part of media organizations is not all that unusual, even among publications that are not avowedly antagonistic or “adversarial” towards U.S. intelligence.

“News organizations publishing leaked National Security Agency documents have inadvertently disclosed the names of at least six intelligence workers and other government secrets they never intended to give away,” according to the Associated Press (“Media sometimes try, fail to keep NSA’s secrets” by Raphael Satter, AP, February 8).

The 13 month prison sentence that Stephen Kim is expected to receive may be the least of the punishments he will have suffered. Merely to be accused and prosecuted under the Espionage Act can be practically unbearable.

Even before a final judgment has been rendered, his sister wrote, “He endured what would break a normal person, abandoned by his significant other, deserted by his ‘friends’, shunned by his former colleagues, [and] ostracized by society.”

But setting aside questions of fairness, proportionality and selective prosecution, there is a certain dignity in submitting to the judicial process and accepting the consequences of one’s actions.

“Stephen decided to take responsibility for his actions and move forward with his life,” wrote Abbe Lowell.

As we know, not everyone is prepared to do that. But it is not a new predicament.

In ancient Athens, friends of Socrates urged him to flee the country to escape an unjust punishment.

“For men will love you in other places to which you may go, and not in Athens only,” said Crito in Plato’s dialogue of that name. “There are friends of mine in Thessaly, if you like to go to them, who will value and protect you, and no Thessalian will give you any trouble.”

“Nor can I think that you are justified, Socrates, in betraying your own life when you might be saved; this is playing into the hands of your enemies and destroyers,” Crito added.

Upon consideration, however, Socrates refused to become a fugitive under those circumstances. He said he had “chosen the better and nobler part, instead of playing truant and running away, of enduring any punishment which the state inflicts” (Phaedo).

“The Athenians have thought fit to condemn me, and accordingly I have thought it better and more right to remain here and undergo my sentence,” Socrates said.

A recent boom in U.S. production of crude oil is generating some stress on the transportation infrastructure, according to a new report from the Congressional Research Service.

“The rapid expansion of North American oil production has led to significant challenges in transporting crudes efficiently and safely to domestic markets—principally refineries—using the nation’s legacy pipeline infrastructure,” the CRS report said.

“While oil by rail has demonstrated benefits with respect to the efficient movement of oil from producing regions to market hubs, it has also raised significant concerns about transportation safety and potential impacts to the environment.”

See U.S. Rail Transportation of Crude Oil: Background and Issues for Congress, February 6, 2014.

Other CRS publications that have been withheld by Congress from online public distribution include the following.

The Specialty Metal Clause: Oversight Issues and Options for Congress, February 6, 2014

Federal Reserve: Unconventional Monetary Policy Options, February 6, 2014

It was announced today that Chief Justice Roberts has appointed Judge James E. Boasberg of the DC District Court to the Foreign Intelligence Surveillance Court for a seven year term beginning in May 2014. He will replace the outgoing Presiding Judge Reggie Walton, whose term expires in May. The Chief Justice also appointed Judge Richard C. Tallman of the Ninth Circuit Court of Appeals to the Foreign Intelligence Surveillance Court of Review.

The current membership of the FISA Courts can be found here.

Background information on the Foreign Intelligence Surveillance Court and potential changes to its operations were discussed in a new report from the Congressional Research Service. See Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, January 16, 2014.

Relatedly from CRS, see Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues, October 25, 2013

Other new and updated CRS reports that Congress has withheld from online public distribution include the following.

The 2014 Sochi Winter Olympics: Security and Human Rights Issues, January 26, 2014

The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, January 27, 2014

Cuba: U.S. Policy and Issues for the 113th Congress, January 29, 2014

Cuba: U.S. Restrictions on Travel and Remittances, February 4, 2014

Mexico: Background and U.S. Relations, January 30, 2014

Status of Mexican Trucks in the United States: Frequently Asked Questions, January 3, 2014

The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, January 23, 2014

The diverse economic sanctions imposed on Iran by U.S. law or executive order, and the feasibility of lifting those sanctions, are tabulated and presented in a new report from the Congressional Research Service.

“The sudden possibility that the United States may ease financial sector sanctions, and perhaps commit to an eventual dismantling of the entire panoply of economic restrictions on Iran affecting aid, trade, shipping, banking, insurance, underwriting, and support in the international financial institutions, arrives at a time when Congress has been considering additional sanctions on Iran.”

“This report identifies the legislative bases for sanctions imposed on Iran, and the nature of the authority to waive or lift those restrictions.”

A copy was obtained by Secrecy News.  See Iran: U.S. Economic Sanctions and the Authority to Lift Restrictions, February 4, 2014.

Other new or newly updated CRS reports on Middle East-related topics include the following.

Iran Sanctions, January 31, 2014

Yemen: Background and U.S. Relations, February 6, 2014

Iraq: Politics, Governance, and Human Rights, February 5, 2014

The Palestinians: Background and U.S. Relations, January 31, 2014

Kuwait: Security, Reform, and U.S. Policy, January 30, 2014

Qatar: Background and U.S. Relations, January 30, 2014

Jordan: Background and U.S. Relations, January 27, 2014

A resolution introduced yesterday by Sen. John McCain would establish a new Senate Select Committee to investigate the unauthorized disclosures of classified information on National Security Agency collection programs and their implications for national policy.

The McCain resolution is framed broadly and touches on many issues besides leaks, including intelligence policy, congressional oversight, the role of contractors, the constitutionality of current intelligence programs, and more.

The resolution asserts that “senior officials in the intelligence community may have misled Congress or otherwise obfuscated the nature, extent, or use of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans.”

“[T]he provision of incomplete or inaccurate information by officials of the intelligence community has inhibited effective congressional oversight of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans, and undermined congressional and public support of these programs,” the resolution stated.

Moreover, “some such programs, operations, and activities that are the subject matter of the unauthorized disclosures may not have been authorized, or may have exceeded that which was authorized, by law, or may not have been permitted under the Constitution of the United States.”

The proposed new select committee would investigate the unauthorized disclosures and assess how they occurred, the damage to U.S. national security that resulted, and how such damage could be mitigated.

The committee would review the role of intelligence contractors and the adequacy of current management controls.

The committee would evaluate the legality, constitutionality, and efficacy of the NSA collection programs that have been disclosed.

It would also consider “the need for greater transparency and more effective congressional oversight of intelligence community activities,” and whether existing laws are sufficient “to safeguard the rights and privacies of citizens of the United States.”

In proposing a new select committee, Senator McCain is implicitly declaring that existing oversight procedures are inadequate, and that a new, more fundamental approach is required. The prospects for the McCain proposal to become a reality are uncertain.

By law, the United States is not supposed to provide certain forms of military assistance to foreign security forces that have committed gross violations of human rights.

The underlying laws, which were introduced by Sen. Patrick Leahy in the 1990s and which are known as the Leahy laws, are described in a new report from the Congressional Research Service entitled ‘Leahy Law’ Human Rights Provisions and Security Assistance: Issue Overview, January 29, 2014.

The report notes that “the Leahy laws have been the subject of long-standing debate. Policy makers, practitioners, and advocacy groups continue to deliberate overarching questions regarding their utility and desirability, as well as specific questions regarding their appropriate scope and problems in implementation.”

“For many, the Leahy laws are important U.S. foreign policy tools not only because of their potential to promote human rights but because they may help safeguard the U.S. image abroad by distancing the United States from corrupt or brutal security forces.”

“Some, however, raise concerns that these laws limit the Administration’s flexibility to balance competing national interests and may constrain the United States’ ability to respond to national security needs.”

The contrasting views on the subject stem from uncertainty about the practical consequences of the laws’ implementation, the CRS report said.

“Central to this debate are overarching questions that are difficult to answer given the lack of systematic study of Leahy law results. Have these laws indeed been effective in promoting human rights? To what extent have these laws impeded or advanced other key U.S. objectives, such as countering terrorism, preventing violence, or stabilizing territory? Do the laws lead other nations to choose competitors for foreign influence as the source of military materiel and training? Will the United States be able to control down-range effects as it outsources military training through third-party nations? Competing perceptions of these overarching issues underlie perspectives on specific proposals for congressional action.”

“This report provides background on the Leahy laws, including a brief history of their legislative development; an overview guide to the standards and processes used to ‘vet’ — that is, review and clear — foreign military and other security forces for gross violations of human rights; and a brief review of salient issues regarding the provisions of the laws and their implementation.”

In any event, “the Leahy laws apply only to security assistance funding authorized by the FAA [Foreign Assistance Act] and AECA [Arms Export Control Act] or programs funded through DOD appropriations. They do not apply to other security assistance that may be provided by U.S. government agencies through other provisions of law.”  In particular, they would not restrict security assistance through the exercise of CIA covert action.

The Obama Administration maintains that a goal of U.S. security assistance abroad is to “Promote universal values, such as good governance, transparent and accountable oversight of security forces, rule of law, transparency, accountability, delivery of fair and effective justice, and respect for human rights,” according to a White House Fact Sheet on the April 2013 Presidential Policy Directive (PPD) 23.

“Defense trade is an important part of America’s relations with a number of allies and partners, and the United States takes seriously the implications of any transfer of conventional arms to foreign partners,” wrote Acting Assistant Secretary of State Tom Kelly in a blog post yesterday.

*    *    *

Other new reports from the Congressional Research Service that Congress has withheld from online public disclosure include the following.

U.S. Naturalization Policy, January 16, 2014

Financial Assets and Conflict of Interest Regulation in the Executive Branch, January 17, 2014

Recent Trends in Consumer Retail Payment Services Delivered by Depository Institutions, January 16, 2014

Status of the WTO Brazil-U.S. Cotton Case, December 12, 2013

Tribal Jurisdiction over Nonmembers: A Legal Overview, November 26, 2013

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

Perjury Under Federal Law: A Brief Overview, January 28, 2014

Perjury Under Federal Law: A Sketch of the Elements, January 28, 2014

Emergency Relief for Disaster Damaged Roads and Transit Systems: In Brief, January 28, 2014

Nuclear Cooperation with Other Countries: A Primer, January 27, 2014

Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, January 29, 2014

Federal Employees’ Retirement System: Benefits and Financing, January 30, 2014

Military Retirement: Background and Recent Developments, January 27, 2014

Crisis in the Central African Republic, January 27, 2014

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.

The potential for new technologies to harvest energy from the Earth’s crust was considered in a new report from the elite JASON science advisory board on “Enhanced Geothermal Systems” (EGS).

“EGS offers important opportunities for increasing the contribution of geothermal energy to U.S. power production: by a few-fold over the next few years, according to our estimation, and much more so if this initial success is appropriately leveraged over subsequent years,” the report concluded.

As described in the report, EGS entails drilling deep into the Earth’s crust — 1 to 5 kilometers or more — and forcing a fluid (water or brine) through hot, permeable rock. Energy from the heated fluid can then be extracted.

Of course, the technology is not without hazards. One is the potential for pollution of potable water acquifers. Another more ominous concern is “induced seismicity” — or artificially-generated earthquakes.

“Induced seismicity is a relatively well-documented phenomenon associated with changing fluid pressures at depth,” the report notes. The JASONs assert that “there is a basis for controlling the induced seismicity and therefore for minimizing this potential hazard attributable to EGS.”

The new JASON report is elegantly written and can be at least partially understood by non-specialist readers who may have forgotten their heat and mass transfer equations. A copy was obtained by Secrecy News.

Over the past year, the JASONs completed eight classified studies containing sensitive compartmented information (SCI) that have not been disclosed. Several other unclassified reports were also performed and their release is pending.

In 2012, the Central Intelligence Agency refused to release a JASON report entitled “Metamaterials.”

Update: For more background on enhanced geothermal systems, see this story in Scientific American.

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

Identity Theft: Trends and Issues, January 16, 2014

Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq, January 24, 2014

Detention of U.S. Persons as Enemy Belligerents, January 23, 2014

Trends in Discretionary Spending, January 24, 2014

Abortion: Judicial History and Legislative Response, January 24, 2014

Overview of the Federal Tax System, January 23, 2014

International Trade and Finance: Key Policy Issues for the 113th Congress, Second Session, January 23, 2014

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2014

An Overview of Unconventional Oil and Natural Gas: Resources and Federal Actions, January 23, 2014

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, January 17, 2014

The European Union: Questions and Answers, January 15, 2014

North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation, January 15, 2014

Iran Sanctions, January 15, 2014

The diverse factors that shape the execution of disaster relief and other foreign humanitarian assistance missions by the US military are described in a newly updated Department of Defense publication on the subject.

See Foreign Humanitarian Assistance, Joint Publication 3-29, January 3, 2014.

“Although US military forces are organized, trained, and equipped to conduct military operations that defend and protect US national interests, their inherent unique capabilities may be used to conduct FHA [Foreign Humanitarian Assistance] activities,” the publication said.

FHA “consists of Department of Defense activities conducted outside the US and its territories to directly relieve or reduce human suffering, disease, hunger, or privation.”

The publication said that DoD FHA operations necessarily include “intelligence collection concerning political, military, paramilitary, ethnic, religious, economic, medical, environmental, geospatial, and criminal indicators…. Intelligence operations during FHA operations are generally conducted in the same manner as in any other military operation.”

At the same time, however, “Information sharing is critical to the efficient pursuit of a common humanitarian purpose… The sharing of information is particularly critical because no single responding entity– whether it is an NGO [nongovernmental organization], IGO [intergovernmental organization], assisting country government or host government– can be the source of all of the required data and information.”

“Tensions between military needs for classification (secrecy) of data, versus the civilian need for transparency… often complicate effective civil-military coordination,” the DoD publication noted.

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.