The conduct of warfare today raises challenging new legal issues that require prompt and operationally sound responses, according to a new publication (pdf) from the Joint Chiefs of Staff.

“Modern military operations take place in an increasingly complex geo-political environment. The classic scenario of defending against cross-border aggression represents only one of the challenges facing current [joint forces]. Stability operations, foreign humanitarian assistance operations, and civil-military operations present increased requirements for direct legal support,” the new document states.

“Military lawyers were true combat multipliers in Iraq,” said General David H. Petraeus, who is now U.S. commander in Iraq. “I tried to get all the lawyers we could get our hands on — and then sought more.”

The missions and functions of military lawyers and organizations are described in “Legal Support to Military Operations,” Joint Publication JP 1-04, March 1, 2007.

The Federal Bureau of Investigation made numerous “improper and illegal” uses of the investigative tool known as “national security letters,” by which it gathers information in national security cases, a report (large pdf) by the Justice Department Inspector General found.

The abuses identified by the Inspector General “did not involve criminal misconduct,” the report said. “However, the improper or illegal uses we found included serious misuses of national security letter authority.”

These included the collection of information not permitted by law, the collection of information on persons not properly the subject of an FBI investigation, the failure to identify and report such errors, and quite a bit more.

See “A Review of the Federal Bureau of Investigation’s Use of National Security Letters,” DoJ Office of Inspector General, March 2007 (199 pages in a large 35 MB 12 MB PDF file) (Thanks to Prof. Edward P. Richards for providing a compressed, searchable version of this document).

In a statement today, the FBI did not dispute the new report’s conclusions.

“The Inspector General conducted a fair and objective review of the FBI’s use of a proven and useful investigative tool,” said Director Robert S. Mueller, III, “and his finding of deficiencies in our processes is unacceptable.”

The development of the FBI’s counterintelligence role in the crucible of pre-World War II security concerns is detailed in an interesting new book from the excellent University of Kansas Press. See “The Origins of FBI Counterintelligence” by Raymond J. Batvinis, Univ of Kansas Press, March 2007.

Army policy on human resources — the mundane but vital identification, development, coordination and deployment of military personnel needed to accomplish Army objectives — is presented in a new Field Manual. See “Human Resources Support,” FM 1-0, February 2007 (223 pages, 6.0 MB PDF).

A new report (pdf) from a Dutch counterintelligence agency warns of the growing role of the Internet in Islamic extremist circles.

“The Internet is an important platform for radicalisation and can even serve as a virtual [terrorist] training camp. Jihadis not only use the Internet as a resource, but can also attack the Internet itself with terrorist activities (the Internet as a target) or use the Internet against other targets (the Internet as a weapon),” and so forth.

See “Jihadis and the Internet,” National Coordinator for Counterterrorism (Netherlands), February 2007.

Fortunately or unfortunately, much of the report is overly credulous and cannot be taken at face value, according to George Smith of GlobalSecurity.org and the Dick Destiny blog.

Among other examples, he noted the report’s citation to an online manual on the use of botulinum toxin as a weapon. But the manual itself is either a hoax or a primitive misunderstanding, and has previously been debunked by Dr. Smith, a chemist (Secrecy News, 08/08/05).

It “is an example of someone professing to know what he is doing on poisons who profoundly and obviously does not know what he is doing,” Dr. Smith said in 2005.

The new Dutch report excludes “the now large critical body of work” on the magnitude and character of the terrorist threat, Dr. Smith said. “It’s the standard script.”

Some recent publications of the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress,” updated February 9, 2007.

“The National Biodefense Analysis and Countermeasures Center: Issues for Congress,” updated February 15, 2007.

“National Security Surveillance Act of 2006: S. 3886, Title II (S. 2453 as Reported Out of the Senate Judiciary Committee,” updated January 18, 2007.

“Active Military Sonar and Marine Mammals: Events and References,” updated February 12, 2007.

“U.S.-China Nuclear Cooperation Agreement,” updated January 31, 2007.

In a “shocking and inexcusable” action that may threaten the institution of congressional intelligence oversight, an anonymous Senator yesterday blocked Senate consideration of the pending Intelligence Authorization Act for FY 2007. No intelligence authorization bill has been passed by Congress for the past two years.

If Congress remains unable to legislate an intelligence authorization act, which is the principal product of the intelligence oversight committees each year, then the committees themselves could be rendered irrelevant, officials say.

“The Senate’s failure to pass this critical national security legislation for the past 2 years is remarkably shocking and inexcusable,” said an angry Sen. Jay Rockefeller (D-WV), who chairs the Senate Intelligence Committee.

“The result of this continued obstruction will be diminished authority for intelligence agencies to do their job in protecting America. I hope the [anonymous] Senator involved takes satisfaction in that,” Senator Rockefeller said March 6.

The Senator who is holding up the bill is Sen. Jim DeMint (R-SC), according to Tim Starks of Congressional Quarterly.

Sen. DeMint “is said to be concerned about provisions of the bill that require the Bush administration to report to Congress on its detention policies, such as those pertaining to its secret CIA prisons, as well as a provision to declassify the total intelligence budget,” CQ reported on March 6.

The Central Intelligence Agency improperly blocked a former CIA employee from disseminating unclassified information about what he considered illicit CIA contacts with a foreign national suspected of criminal acts, according to a lawsuit (pdf) filed this week in DC District Court.

Franz Boening, who was employed by CIA from 1980 to 2005, contended that “the CIA maintained a special relationship with a foreign individual who committed unlawful human rights violations and criminal acts with the knowledge of the CIA.” He further alleged that he has suffered retaliation for expressing his concerns.

According to Mr. Boening, “CIA may have violated US laws during its 10+ year relationship with [name redacted].”

As required by his non-disclosure agreement, Mr. Boening submitted his proposed disclosures to the CIA Publication Review Board, which refused to authorize their release.

“Although the entire analysis and factual recitation of the CIA’s involvement with this individual was based purely on publicly available nongovernmental (including newspaper articles) and unclassified government websites, the CIA ‘classified’ more than a dozen pages of publicly available newspaper, radio, and television information, a practice that was commonly assumed to have been discontinued by the CIA years ago,” according to the complaint, filed by attorney Mark S. Zaid on March 5.

Two former CIA officials contacted by Secrecy News declined to comment on the case. Another official said that the handling of the Boening matter over the last couple of years coincided with a loss of autonomy at the CIA Publication Review Board in favor of increased control by agency Information Review Officers (IROs). That trend may now be reversing, the official said, under the current DCIA Michael Hayden.

Mr. Boening appears to have been the first and perhaps the only government official ever to take advantage of a provision of the executive order on classification that encourages authorized holders of classified information to challenge its classification if they believe it is improper (executive order 13292, section 1.8).

In order to deflect his challenge, the new complaint says, the CIA argued that he was not technically an “authorized holder” of the information in question and therefore did not have standing to challenge its classification status.

In the course of an urgent search for the sources who were providing classified information to journalist Jack Anderson in 1971, the Nixon Administration discovered a surprising culprit.

A Navy yeoman in the National Security Council named Charles Radford was not only the “almost certain source” of the Jack Anderson leaks, but he was also in the habit of routinely copying classified documents in the briefcases of Henry Kissinger, Alexander Haig, and other senior Administration officials, and forwarding the documents to the Joint Chiefs of Staff.

In effect, the Joint Chiefs were spying on the Nixon White House.

“The P[resident] was quite shocked, naturally, by the whole situation,” according to the diary of Nixon aide H.R. Haldeman.

The whole episode, which has been previously described in various memoirs and historical studies, was recalled in a recent edition of Foreign Relations of the United States (FRUS), which also published some newly transcribed Presidential discussions of the case (pdf).

Admiral Welander, yeoman Radford’s boss, said that the yeoman should be put in jail for his actions, Haldeman wrote.

Admiral Moorer, the Chairman of the Joint Chiefs, said that Admiral Welander should be put in jail.

Kissinger said, “I think Moorer should be in jail.”

In the end, nobody went to jail.

“Our best interests are served by not, you know, raising holy hell,” concluded President Nixon.

See the relevant excerpts on the Radford-Joint Chiefs spying case (documents 164-166) here. The full text of the source volume of FRUS is here.

A controversial proposal by Sen. Jon Kyl to criminalize leaks of classified information contained in certain reports to Congress may be considered by the Senate today or tomorrow.

Paul M. Weyrich, the influential culture warrior who leads the arch-conservative Free Congress Foundation, has called upon Congress to grant public access to products of the Congressional Research Service.

“It seems to me that it is time to end the foolishness and just make the CRS website available to the general public,” Mr. Weyrich wrote in a new commentary.

Does Mr. Weyrich’s endorsement of public access to CRS reports imply that continued restrictions on such access might actually be desirable? Of course not.

Here are some recent acquisitions (all pdf).

“The Executive Office of the President: An Historical Overview,” updated November 28, 2006.

“Radioactive Tank Waste from the Past Production of Nuclear Weapons: Background and Issues for Congress,” updated January 3, 2007.

“United Nations Reform: U.S. Policy and International Perspectives,” January 22, 2007.

Sunshine Week, which falls this year on March 11-17, is an annual effort by news organizations, libraries and public interest groups to focus public attention on the importance of open government.

Next week, dozens of programs across the country will explore the costs of secrecy, the virtues of openness, and the path forward.

See this calendar of events.

Next week may also see House action on three open government bills that have been advanced by the House Committee on Oversight and Government Reform under the leadership of Rep. Henry Waxman.

The pending bills include one on Freedom of Information Act amendments, one on amendments to the Presidential Records Act, and one on disclosure of donations to Presidential libraries. Markup of the bills will take place on March 8, and House floor action is expected next week.

A federal appeals court ruled last week (pdf) that the overriding need to protect “state secrets” makes it impossible to litigate claims by a German citizen named Khaled el-Masri that he was illegally detained and abused by the Central Intelligence Agency in a case of “extraordinary rendition.” The appeals court upheld a lower court’s earlier dismissal of the proceeding.

In a March 2 decision, the court rehearsed the allegations at issue as well as the relevant case law on the state secrets privilege.

El-Masri would not be able to make his case, the court concluded, except by using “[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations.”

Similarly, said the court, the CIA could not defend itself against the allegations “without using privileged evidence.”

“The main avenues of defense available [to CIA] in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability. Any of those three showings would require disclosure of information regarding the means and methods by which the CIA gathers intelligence.”

The court rejected the contention by the defense that by yielding to the government’s state secrets claims, the judiciary had abdicated jurisdiction over a case of egregious governmental abuse.

“Contrary to El-Masri’s assertion, the state secrets doctrine does not represent a surrender of judicial control over access to the courts,” the court said.

“As we have explained, it is the court, not the Executive, that determines whether the state secrets privilege has been properly invoked. In order to successfully claim the state secrets privilege, the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret,” the court ruling stated.

“Today the appeals court gave the CIA complete immunity for even its most shameful conduct,” said ACLU attorney Ben Wizner, who represented El-Masri. “Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured.”

Under current legal conditions, there is no disincentive for the government to invoke the state secrets privilege, which often terminates litigation in its favor. But a pending bill introduced by Rep. Henry Waxman and several House colleagues would change that calculation in the case of whistleblower lawsuits.

Under the provisions of the Whistleblower Protection Act of 2007, “the court shall resolve the disputed issue of fact or law in favor of the plaintiff,” if the government’s use of the state secrets privilege prevents the plaintiff from making his case and there is independent support for his argument from an Inspector General investigation.

And whenever the state secrets privilege is asserted, the bill would also require the agency head to submit a report to Congress “describing the reasons for the assertion, explaining why the court hearing the matter does not have the ability to maintain the protection of classified information related to the assertion,” and providing other relevant information. See section 10 of HR 985.

A reference manual (pdf) to assist government employees and contractors in correctly marking classified Department of Energy records has recently been published and distributed by DOE. See “DOE Marking Handbook: How to Mark Matter Containing Classified Information and Unclassified Controlled Information,” September 26, 2006.