Both as a matter of humanitarian principle and as sound military strategy, U.S. military forces should strive to minimize civilian casualties in military operations, according to new U.S. Army doctrine published on Wednesday.

“In their efforts to defeat enemies, Army units and their partners must ensure that they are not creating even more adversaries in the process,” the new publication states.

“Focused attention on CIVCAS [civilian casualty] mitigation is an important investment to maintain legitimacy and ensure eventual success.  Failure to prevent CIVCASs will undermine national policy objectives as well as the mission of Army units, while assisting adversaries.”

So, for example, “When Army units are establishing and maintaining wide area security, it may be more important to minimize CIVCAS than to defeat a particular enemy.”

However, “While CIVCAS mitigation efforts can greatly reduce CIVCASs, it is unreasonable to expect that CIVCASs can be completely eliminated in all instances.  When CIVCASs occur, the most important part of the response is to determine the facts of the incident, including the numbers and severity of CIVCASs.”

“Recognizing that they are in a constant information battle with their adversaries regarding CIVCASs and other issues, Army units should maintain a consistent pattern of truthfulness and timeliness.”

“Army investigations [of civilian casualty incidents] should strive for integrity, credibility, and inclusion of external perspectives…. Immediate and broad denial of reports without complete and accurate information in hand can undermine credibility, especially if the investigation finds reports [of civilian casualties] were correct.”

See “Civilian Casualty Mitigation,” ATTP 3-37.31, July 2012.

The first new legislative initiative to combat leaks of classified information is a bill called the Deterring Public Disclosure of Covert Actions Act of 2012, which was introduced July 10 by Sen. Richard Burr (R-NC).

“This act will ensure that those who disclose or talk about covert actions by the United States will no longer be eligible for Federal Government security clearance. It is novel. It is very simple. If you talk about covert actions you will have your clearance revoked and you will never get another one,” Sen. Burr said.

As justification for the measure, he cited “a series of articles published in the media that have described and in some cases provided extensive details about highly classified unilateral and joint intelligence operations, including covert actions.”

But this assumes certain facts that are not in evidence.  As Walter Pincus wrote in the Washington Post today, there are numerous official and unofficial sources of information about the Stuxnet covert action story, for example, including private sector companies and foreign sources that do not hold security clearances.  From that point of view, the Burr bill does not seem well-suited to achieve its intended purpose.

But the most peculiar thing about the new legislation is that it appears to validate the spurious notion of an “authorized leak.”

Thus, the text of the bill would revoke the security clearance of persons who publicly disclose or discuss classified details of covert actions — unless they have “prior authorization from an original classification authority.”

This seems to mean that classified information about covert actions need not be specifically declassified in order to be publicly released, but only that its disclosure must be “authorized.”

The question of imposing criminal penalties for disclosure of classified information to the press was discussed lately by Morton H. Halperin, who has been involved as a consultant or an expert witness for the defense in many or most of the leak prosecutions from the Ellsberg case in the 1970s to the present.

“Starting from the premise that more information must be made public and that the government has the right to keep some information secret in the name of national security, we need a public and congressional dialogue about what set of measures would be most effective in meeting these two equally important objectives. Reducing government secrecy must be a key component of any such measures,” he wrote in “Leaks and the Public Right to Know,” Huffington Post, July 16.  See also a longer paper by Halperin on “Criminal Penalties for Disclosing Classified Information to the Press in the United States.”

In 1972, the United States, the Soviet Union and other nations signed the Biological and Toxin Weapons Convention that was supposed to ban biological weapons.  At that very time, however, the Soviet Union was embarking on a massive expansion of its offensive biological weapons program, which began in the 1920s and continued under the Russian Federation at least into the 1990s.

The astonishing story of the Soviet biological weapons enterprise is told in an encyclopedic new work entitled “The Soviet Biological Weapons Program: A History” by Milton Leitenberg and Raymond A. Zilinskas (Harvard University Press, 2012).

The Soviet biological weapons (BW) program was by far the largest and most sophisticated such program ever undertaken by any nation.  It was also intensely secretive, and was masked by layers of classification, deception and misdirection.

“The program’s most important facilities remain inaccessible to outsiders to this day,” Leitenberg and Zilinskas write, “and it has been made a crime for anyone in present-day Russia to divulge information about the former offensive BW program.”  Needless to say, official archives are closed and Russian government officials are uncommunicative on the subject, or deny the existence of the program altogether.

Over a period of a decade or so, Leitenberg and Zilinskas were able to interview about a dozen former Soviet scientists who were involved in the Soviet BW program, along with dozens of other sources.  Their revelations inform the authors’ analysis and serve to advance public knowledge of the subject far beyond previous reports.  Even relatively well-known incidents like the 1979 Sverdlovsk anthrax epidemic are cast in a new light.  Many other aspects of the program will be entirely unfamiliar to most readers.

Much of the book is devoted to a description of the vast infrastructure of Soviet BW research and production, including descriptions of the various institutes, their history, their workforce and the nature of their research, as far as it could be discerned.  Along the way, many fascinating and sometimes horrific topics are addressed.  For example:

•     In an effort to enhance the weapons-related properties of BW agents, Soviet scientists spent years working to create a viral “chimera,” which is an organism that contains genetic material from two or more other organisms.
•     Other scientists worked to eliminate the “epitopes” on the surface of existing BW agents in order to make them unrecognizable to regular diagnostic techniques.  By using such a modified agent, “the Soviets would have made it considerably more difficult for the attacked population to identify the causative pathogen of the resulting disease outbreak and begin timely treatment.”
•     A project codenamed Hunter (Okhotnik) sought to develop hybrids of bacteria and viruses such that use of an antibiotic to kill the bacteria would trigger release of the virus.  “Unlike other national BW programs, which without exception used only classical or traditional applied microbiology techniques to weaponize agents, the post-1972 Soviet program had a futuristic aspect. By employing genetic manipulation and other molecular biology techniques, its scientists were able to breach barriers separating species….”
•     The Soviet BW program appears to have taken advantage of the declassification in the 1970s of a large number of documents from the United States BW program.  Thus, the design of the Soviet Gshch-304 BW bomblet was found to closely resemble that of the declassified US E-130R2 bomblet.  In 2001, the US Government moved to reclassify many documents on the US BW program, but “nothing could be done about recalling reports that had been distributed relatively freely for more than 35 years.”
•     The quality of US intelligence about the Soviet BW program left much to be desired.  “Intelligence about Soviet BW-related activities is relatively thin for the pre-1972 period; meager and often of dubious value during 1970-1979; and a little less meager and of better quality during 1980-1990.” After 1990, little has been declassified.  “There is an unknown number of still-classified reports concerning the Soviet BW program produced by the CIA and perhaps by other agencies that we do not have,” the authors write.  The state of declassification is such that “we have been able to collect far more information” about the history of Soviet BW activities from interviews with former Soviet scientists and others than from declassified official records.
•     In what the authors term “a horrendous mistake by the United States,” the US government undertook a covert deception and disinformation program aimed at the Soviet Union in the late 1960s which implied falsely that the US had a clandestine biological weapons program.  This unfortunate campaign may have reinforced an existing Soviet belief that the US had never terminated its own offensive BW program, a belief that lent impetus, if not legitimacy, to the Soviet BW program.
•     Today, the situation with respect to BW in the former Soviet Union is “ambiguous and unsatisfactory,” Leitenberg and Zilinskas write. “There remains the possibility that Russia maintains portions of an offensive BW program in violation of the BWC.” Alternatively, “since we do not actually know what is and has been taking place within the three [Ministry of Defense BW] facilities since 1992, perhaps the situation is better than might be feared.”

In 23 chapters, the authors painstakingly examine many facets of the history, structure and operation of the Soviet BW program.  They scrupulously cite prior scholarship on the subject, while sorting out verifiable fact, plausible inference, dubious speculation, and error or fabrication.  (Thus, “No SS-18 ICBM bomblet delivery system was ever completed, none was ever tested, and obviously none could ever have been employed.”)

But even after 900 pages of often dense text, “there are large gaps in our understanding of the Soviet BW program” and “readers are cautioned that much remains to be discovered.”

“We have not been able to resolve definitively some of the most important questions,” they observe.  Unanswered questions involve basic issues such as the motivation and purpose of the program.  Why did the Soviet Union pursue the development and acquisition of biological weapons?  Who was to be targeted by Soviet biological weapons – the US?  China?  Europe? – and under what conceivable circumstances?  And what happens now?

Following a brief period during the Yeltsin years during which Russian officials acknowledged this activity, “Russia’s current official position is that no offensive BW program had existed in the Soviet Union.”

*    *    *

The History of the Soviet Biological Weapons Program was reviewed by author David E. Hoffman in Foreign Policy last month.

In 2010 the US Government signed an agreement with the former Soviet Republic of Armenia to cooperate in the control or destruction of dangerous pathogens, and in other efforts to prevent proliferation of biological weapons.  The agreement, one of several such documents, was published earlier this year.

The recent controversy over publication of scientific papers concerning the transmissibility of bird flu virus was reviewed in a new report by the Congressional Research Service. The report cautiously elucidates the relevant policy implications and considers the responses available to Congress.

“Because of the complexity of dual-use issues, analysis of a topic according to one set of policy priorities may lead to unforeseen complications due to its intersection with other policy priorities,” the report says. “For example, maximizing security may lead to detriments in public health and scientific advancement, while maximizing scientific advancement may lead to security risks.”

See Publishing Scientific Papers with Potential Security Risks: Issues for Congress, July 12, 2012.

The Interagency Security Classification Appeals Panel (ISCAP) is preparing to provide improved public notification of its declassification and disclosure decisions.

The ISCAP, among its other duties, considers and rules on appeals from the public to declassify records that agencies have refused to release.  The Panel, which was established by executive order in 1995, has actually succeeded beyond all reasonable expectations, declassifying information in the majority of cases presented to it.  (My own requests were not among those that were decided in favor of disclosure.)  According to the latest annual report from the Information Security Oversight Office:

“Since May 1996, the Panel decided upon a total of 1,195 documents. Of these, the Panel declassified additional information in 64 percent of the documents. Specifically, 291 documents (24 percent) were declassified in their entirety and 477 documents (40 percent) had some portions declassified while the classification of other portions was affirmed. During this time frame, the Panel fully affirmed the classification decisions of agencies in 427 documents (36 percent).”

Last week, the ISCAP issued revised bylaws, including a new section on “dissemination of ISCAP decisions” (sec. 2003.14).

This section corresponds to the so-called “fourth function” assigned to ISCAP by President Obama’s executive order 13526 that required the Panel to “appropriately inform senior agency officials and the public of final Panel decisions….”  That provision did not exist in previous Administrations’ executive orders, which listed only three functions for the ISCAP.

Another revised provision of the bylaws puts the ISCAP at the President’s disposal to carry out other unspecified advisory functions, as needed.  In language oddly reminiscent of the 1947 National Security Act section that was understood to authorize CIA covert action (by which the Agency is “to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct”), the ISCAP bylaws (sec. 2003.15) state somewhat evasively:

“As directed by the President through the National Security Advisor, the ISCAP performs such additional advisory functions as are consistent with, and supportive of, the successful implementation of the Order.”

The Due Process Guarantee Act (S. 2003) is a bill that was introduced last year by Sen. Dianne Feinstein and colleagues to explicitly prohibit the indefinite detention without trial of United States citizens who are apprehended within the United States on suspicion of terrorism.

The bill was crafted due to a residual ambiguity in last year’s defense authorization act that seemed to leave it an open question as to whether Americans could be so detained or not.

The Due Process Guarantee Act has not progressed to a vote in the House or the Senate.  But the Senate Judiciary Committee held a hearing on it last February 29.  The full record of that hearing has recently been published.

The full hearing volume presents some new material including answers to questions for the record provided by Steven Bradbury, the former head of the Bush Administration Office of Legal Counsel.  It also includes a flinty exchange of letters between Mr. Bradbury and Sen. Al Franken, who said that Mr. Bradbury was unsuited to be be a witness before the Committee because of his “contemptible” legal advice regarding enhanced interrogation during the Bush years.

Further background related to the subject matter of the hearing can be found in Detention of U.S. Persons as Enemy Belligerents by Jennifer K. Elsea of the Congressional Research Service.

“Language and cultural competency” is the theme of the latest edition of the U.S. Army’s Military Intelligence Professional Bulletin.

Topics addressed include cultural relativism, ethnography, “patron-client relations,” the stand-up of AFRICOM (US Africa Command) from an African perspective, and “operational culture training for the French military in Africa.”

The Army does not make the Military Intelligence Professional Bulletin routinely available to the public.  But upon request, the latest issue was released under the Freedom of Information Act.

Last May, J. William Leonard, the former director of the Information Security Oversight Office, asked a federal court for permission to disclose and discuss declassified National Security Agency documents that had been cited in the prosecution of former NSA official Thomas Drake.  The documents represented a particularly “egregious” and “willful” case of overclassification, Mr. Leonard said, that needed to be publicly addressed.

Last month, government attorneys said there was no basis for action by the Court, and they suggested that Mr. Leonard could submit a Freedom of Information Act request to NSA for the documents instead.

Yesterday, Mr. Drake’s attorneys fired back in support of Mr. Leonard, who served as an expert for the Drake defense. They said Mr. Leonard is properly seeking relief from the Court because it was the Court that issued the Protective Order that limits his ability to discuss the issue.

“The Protective Order remains in effect today. It was not voided or mooted when judgment was entered last year. It has not expired,” wrote public defenders James Wyda and Deborah L. Boardman, Mr. Drake’s attorneys. “Although the United States may not take the terms of its own Protective Order seriously, Mr. Leonard does.”

The government’s suggestion that Mr. Drake file a FOIA request is unsatisfactory in two ways, Mr. Wyda and Ms. Boardman wrote.  First, NSA has failed to release these documents in response to previous FOIA requests, including one filed by me last year.

“Given NSA’s track record and its failure to respond to prior requests […], Mr. Leonard had no reason to believe his FOIA request for the same document would have been successful.”

But even if NSA did release the documents under FOIA, that would not solve Mr. Leonard’s problem, the defense attorneys explained.

“Even if Mr. Leonard had received the documents pursuant to a FOIA request, he would still be bound by the terms of the Protective Order that prohibit him from disclosing and discussing the documents.  It would do Mr. Leonard no good to merely receive the documents pursuant to a FOIA request if he cannot discuss the documents because he is bound by a Court Order that prohibits such discussion.”

The good news, they said, is that NSA has already prepared lightly redacted versions of the documents that are suitable for public release.  “These redacted versions are acceptable to Mr. Leonard,” Mr. Wyda and Ms. Boardman wrote.

Now it will be up to the Court to rule.

The deeper question raised by Mr. Leonard’s action — how to respond to “egregiously” mistaken classification actions — remains open.

“I’ve had it up to my keister with these leaks,” President Reagan complained in 1983 after a series of unauthorized disclosures.  “Keister is slang for buttocks,” the Associated Press helpfully explained at that time.

One of President Reagan’s responses to the flood of leaks was to direct the use of polygraph examinations in leak investigations. (The Director of National Intelligence reflexively responded in a similar way last month.)

National Security Decision Directive 84 of March 11, 1983 directed that “All departments and agencies with employees having access to classified information are directed to revise existing regulations and policies, as necessary, so that employees may be required to submit to polygraph examinations, when appropriate, in the course of investigations of unauthorized disclosures of classified information.”

Amazingly, this policy was denounced by then-Secretary of State George Shultz, who threatened to resign rather than submit to a polygraph examination.  He was excused from the test.

“Management through fear and intimidation is not the way to promote honesty and protect security,” Secretary Shultz said in a January 9, 1989 valedictory speech, explaining his opposition to the polygraph.

But management through fear and intimidation seems to be a recurring theme in security policy.  And polygraph testing is part of that, judging from a remarkable story published this week by McClatchy Newspapers.

“One of the nation’s most secretive intelligence agencies is pressuring its polygraphers to obtain intimate details of the private lives of thousands of job applicants and employees, pushing the ethical and legal boundaries of a program that’s designed instead to catch spies and terrorists,” wrote McClatchy reporter Marisa Taylor.

“The National Reconnaissance Office is so intent on extracting confessions of personal or illicit behavior that officials have admonished polygraphers who refused to go after them and rewarded those who did, sometimes with cash bonuses, a McClatchy investigation found.”  See “National Reconnaissance Office accused of illegally collecting personal data,” July 10.  (More here.)

“The US is, so far as I know, the only nation which places such extensive reliance on the polygraph,” wrote convicted spy Aldrich Ames in a November 2000 letter from prison. “It has gotten us into a lot of trouble.”

The executive branch has just completed a two-year review of its classification guidance that was ordered by President Obama as a way to combat overclassification of government information.  The Review was intended “to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified” (as per section 1.9 of executive order 13526).

The early results of the Fundamental Classification Guidance Review, which formally concluded on June 27, make it clear that something out of the ordinary occurred and that some changes have been made, but the significance of those changes remains uncertain.

The single most dramatic outcome of the Review is that the Department of Defense, which is the largest classifying agency, eliminated more than 400 of its 2000 classification guides.  Each guide is a compilation of detailed classification instructions for an individual program or topical area.  Those cancelled guides can no longer be used to authorize the classification of information.

“Approximately 20% of DoD’s non-compartmented SCGs [security classification guides] have either been eliminated or identified for retirement,” the Pentagon said in its final report on the Fundamental Review.

The Air Force eliminated 44 guides (out of 306 extant), the Army eliminated 72 guides (out of 417), and the Navy eliminated 248 guides (out of 988), the DoD report showed.

Unfortunately, the practical effect of these startling reductions is hard to assess, and it may well be less substantial than the impressive numbers would suggest.  To the extent that the cancelled guides pertain to programs that have been terminated, their elimination will have no effect whatsoever.  Likewise, to the extent that their contents may have been incorporated into or are duplicative of other guides which have not been cancelled, the result is a wash.

In some cases, it is certain that no declassification resulted from the process.  Thus, the Joint Staff, DARPA, and DTRA all state explicitly that none of their information was declassified as a result of the Fundamental Review, since it was all deemed to be properly classified.

In other cases, however, some declassification is known to have occurred due to the Review.  The National Reconnaissance Office, for example, downgraded several categories of classified NRO information and declassified two of them:  “the identification of a contractor as an NRO satellite vehicle contractor” and “the ‘fact of’ real-time command and control telemetry.”

Even such narrow modifications can produce measurable changes in disclosure policy.  In 2008, the “fact of” NRO radar satellite reconnaissance was declassified, which led to the release this week of an extensive body of NRO material about the QUILL synthetic aperture radar satellite, which flew in 1964.

But the general lack of clarity concerning the results of the Fundamental Review is something of a disappointment.  Moreover, it is not consistent with the guidance that was provided to agencies last January by the Director of the Information Security Oversight Office (ISOO), John P. Fitzpatrick.

“To the greatest extent possible,” Mr. Fitzpatrick wrote then, the final reports of the Fundamental Review “should be informative as to how much information that was classified is no longer classified as a result of the review.  The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified.”

The DoD Report, at least, did not fulfill that instruction.

Mr. Fitzpatrick said yesterday that he was still reviewing the reports of the Fundamental Review, which will all be posted on the ISOO website, and that he would discuss them at a later date.

Even in agencies where declassification did not take place, the improved quality of the classification guidance that resulted from the Review appears to have had a salutary effect on the classification system.

According to the latest ISOO Annual Report to the President, the number of original classification decisions — or newly generated secrets — actually decreased by a sizable 43% from 2010 to 2011.  The number of original classifications last year was lower than it has been since 1996.

“The primary reason for this is a greater utilization of classification guides and greater adherence to executive order guidance on the incorporation of original decisions into classification guides,” the ISOO report said.

Iran continues to develop its military capabilities, including ballistic missiles, nuclear weapons-related technologies, and unconventional forces, according to a new Department of Defense report to Congress.

The Pentagon assessment was first reported yesterday in “Iran’s Ballistic Missiles Improving, Pentagon Finds” by Tony Capaccio, Bloomberg News.

The report itself appears to stress that while developing offensive capabilities, Iran’s military posture is essentially defensive in character.

“Iran’s military doctrine remains designed to slow an invasion; target its adversaries’ economic, political, and military interests; and force a diplomatic solution to hostilities while avoiding any concessions that challenge its core interests,” the report says.

Similarly, “Iran’s unconventional forces are trained according to its asymmetric warfare doctrine and would present a formidable force while defending Iranian territory.”

A copy of the new Pentagon Annual Report on Military Power of Iran, dated April 2012 but transmitted to Congress late last month, is available here.

Judge Raymond J. Dearie of the Eastern District of New York was appointed to the Foreign Intelligence Surveillance Court on July 2 by the Chief Justice of the United States.

The 11-member FIS Court rules on applications for domestic intelligence surveillance and physical search under the Foreign Intelligence Surveillance Court.  Judge Dearie replaces Judge Malcolm Howard whose seven-year term expired on May 18, 2012.

Judge Dearie’s appointment last week was confirmed today by Sheldon L. Snook, a spokesman for the Court.  The current membership of the FIS Court may be found here.

Judge Dearie was nominated to the federal bench by President Reagan in February 1986.

The Foreign Intelligence Surveillance Act has played a role in at least one case presided over by Judge Dearie, namely that of Najibullah Zazi.  In 2009, prosecutors in that case gave notice of their intent to use evidence obtained through FISA surveillance. In the event, Zazi pled guilty in 2010 to multiple charges of conspiracy and support for a terrorist organization.