Jesselyn Radack’s memoir “Traitor: The Whistleblower and the American Taliban” presents the moving story of a young attorney’s unexpected encounter with official misconduct, and the excruciating ordeal that ensued when she decided to challenge it.

In 2001, Ms. Radack was a Justice Department attorney and specialist in legal ethics.  In response to an official inquiry, she advised that the newly captured John Walker Lindh, the so-called “American Taliban,” should not be interrogated without an attorney present — which he then was anyway.  When Department officials publicly denied having received any such legal advice, and even destroyed evidence to the contrary, she exposed the deception.

Ms. Radack was not looking for a fight, but only to do the right thing. For her trouble, she was forced out of her Justice Department position, put under criminal investigation, fired from her subsequent job, reported to the state bar, and put on the “no fly” list.

“Traitor” is the story of a young professional whose career is derailed because her ethical compass will not let her be silent in the face of offical dishonesty.  It is also the story of a political system that is seemingly incapable of tolerating honorable dissenting views within the government workforce.

While a handful of “whistleblowers” become figures of popular acclaim, or heroes of movies such as The Insider or Erin Brockovich, they are the exception rather the rule, Ms. Radack writes.

“The media glorifies those who risk everything to expose corruption and illegal activity and rightly so; these lionized individuals deserve every ounce of praise they receive.  But their happy outcomes are not typical– for every success story, there are a hundred stories of professional martyrdom.  Mine is one of them.”

Ms. Radack eventually found a measure of redemption as an attorney with the Government Accountability Project where she has turned her own experience to advantage in promoting whistleblower rights.  She was among the most stalwart and effective defenders of Thomas Drake, the former NSA official and whistleblower whose dubious prosecution under the Espionage Act ended with the dismissal of all felony charges against him.

The Bush administration (in which she worked) was hostile to whistleblowers, according to Ms. Radack, but the Obama administration is even worse.

“The Bush administration harassed whistleblowers unmercifully,” she writes.  “But it took the Obama administration to actually prosecute them.”

I don’t think it is true, however, that the prosecution of Thomas Drake “was a test case for the Justice Department to try a novel legal theory… that the Espionage Act could be used to prosecute leakers” (p. 159).

Far from being novel, the use of Espionage Act to prosecute unauthorized disclosures of classified information predates the Drake case by decades.  At least since the conviction of Samuel L. Morison in the 1980s for providing classified intelligence imagery to Jane’s Defence Weekly — and the Supreme Court’s refusal to review the case — this application of the Espionage Act has been seemingly well established.

And there is some ambiguity about who qualifies for the appellation “whistleblower.”  It is a loaded term both because it presumes the pure intention of the individual challenger, and because it takes for granted the corruption of his target.  These need to be demonstrated, not simply asserted.  It cannot be the case that a strong sense of personal conviction, untethered from legal or ethical constraints, is enough to entitle anyone to be called a whistleblower.  If that were so, then Jonathan Pollard and other disreputable figures could claim the title.

Ms. Radack states twice that the Obama Administration has prosecuted leakers “who more often than not were whistleblowers” (p. 69, 92).  This suggests that she thinks at least some of the six leak defendants to have been prosecuted by the Administration may not have been whistleblowers.  But if so, she does not specify which ones they were, or why she came to that conclusion.

I would say that “whistleblowers” are not a separate category of people in any essential sense.  Anyone can act with integrity under some circumstances.  The whistleblowers that we honor are people who act with integrity under extreme duress and sometimes at great cost.  Jesselyn Radack’s memoir is an eloquent account of one such case.

Last week, the Department of Defense published the 2012 edition of the Manual for Courts-Martial (MCM).

The Manual contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the Uniform Code of Military Justice.  The latest edition incorporates legislative amendments and other changes introduced since the previous edition was published in 2008.

The Manual details the elements of various crimes such as “Aiding the Enemy” (Article 104), which is among the charges pending against Bradley Manning, who is suspected of having provided classified and other restricted records to WikiLeaks without authorization.

“No unauthorized communication, correspondence, or intercourse with the enemy is permissible,” according to the Manual’s explanation of Article 104 (which has not been amended recently).

“The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly.”

“Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be conveyed by direct or indirect means.”

See, more generally, Military Justice: Courts-Martial, An Overview from the Congressional Research Service, March 14, 2012.

On April 3, the National Reconnaissance Office successfully launched a classified intelligence satellite into orbit from Vandenberg Air Force Base.  Notwithstanding the usual operations security measures, amateur satellite trackers were able to locate the satellite in orbit within a few hours and even to videotape its passage overhead.

Last week’s launch is the first of four scheduled launches of NRO satellites in the next five months.  Last year, the NRO launched six satellites over a seven month period.

“We are in the middle of a launch campaign with an unprecedented operational tempo across national security space programs,” said Gil Klinger, deputy assistant secretary of defense for space policy, at a March 8 hearing of the House Armed Services Committee.

“Many of our space capabilities have become the ‘dial tone’ of national security,” Mr. Klinger said. “And like the dial tone of our telephones, we take their availability and presence for granted, noticing only when there is an unplanned service interruption.”

By intelligence community standards, the NRO has demonstrated exceptional financial management, said Betty Sapp, NRO principal deputy director.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” she said at the March 8 hearing.

It is possible to imagine all kinds of changes in government secrecy policy that would make the secrecy system smaller, more efficient, more susceptible to error correction, and more attuned to shifting security requirements.

Such changes might include, for example, self-cancelling classification markings, numerical limits on classification activity, broadly distributed oversight and declassification authority, new mechanisms for challenging classification decisions, and so on.

But before any such change could be adopted in practice, it would almost certainly need to be tested and validated for use, particularly if it involved a real departure from current procedures.

A classification policy “test bed” in which a variety of new classification policies could be put into practice on a limited scale would therefore be desirable, and would signify a non-rhetorical commitment to policy change.

It is interesting to note that the need to systematically approach change has been recognized in other national security contexts, which might serve as a model for secrecy reform.

The U.S. Army actually has its own Logistics Innovation Agency whose mission is “to provide innovative solutions for improved operational and tactical logistics readiness.”

The Agency “uses well-defined processes of exploration, discovery, demonstration, and transition to integrate logistics solutions that help prepare the Army for uncertain and complex future operating environments,” according to an updated Army regulation published last week.

Similarly, the U.S. Navy has an Office of Innovation that “promotes, fosters, and develops innovative science, technology, processes and policies that support the Department of the Navy.”

These and similar entities might be persuaded or directed to undertake pilot projects on innovations in national security classification.  If successful, such efforts could advance a consensus view of sharply limited secrecy that is more responsive to the public interest in both security and disclosure.

Former CIA officer John C. Kiriakou was indicted yesterday on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act.  He had been charged on January 23 but the indictment was not filed and unsealed until yesterday.

Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it. He is further accused of making false statements to the CIA Publications Review Board in connection with a manuscript he intended to publish.

While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize an expensive and burdensome defense, it is challenging in a different way for the prosecution, which will face a variety of substantive and procedural hurdles.

For one thing, it remains to be shown that the “covert officer” whose identity was allegedly disclosed to a reporter by Kiriakou actually falls within the ambit of the Intelligence Identities Protection Act.  To be subject to the Act’s penalties, the covert officer in question — whose identity has not been publicly revealed — must not only be under cover but must also have served abroad within the past 5 years.

But the prosecution’s biggest challenge, which may well be insurmountable, will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm the United States or to assist a foreign nation by committing an unauthorized disclosure.

The new indictment asserts generally that Kiriakou “had reason to believe [the information] could be used to the injury of the United States and to the advantage of any foreign nation,” which is an element of the crime set forth in the Espionage Act (18 USC 793).

Yet the meaning of this provision was construed by Judge T.S. Ellis III in a 2006 opinion in a way that would seem to make the prosecution of Mr. Kiriakou particularly difficult. In light of that opinion, the government will have to prove not merely that Kiriakou “had reason to believe” some harm to the United States could possibly result from his action, but that he deliberately intended to cause such harm.

This follows from the (alleged) fact that Kiriakou disclosed classified “information” rather than classified “documents,” as well as from the seemingly duplicative Espionage Act use of the terms willfulness and reason to believe, which Judge Ellis interpreted thus:

“If a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for ‘willfully’ committing the prohibited acts even if he viewed the disclosure as an act of patriotism,” Judge Ellis wrote. “By contrast, the ‘reason to believe’ scienter requirement that accompanies disclosures of information requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”  (see pp. 33-34).

But there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

“For more than 14 years, John worked in the field and at home, under conditions of great peril and stress and at great personal sacrifice, dedicating himself to protecting America and Americans from harm at home and abroad,” states a new website devoted to his cause.

Dale R. Corson, a nuclear physicist who died last week, is best remembered as the Cornell University President who peacefully led his campus through the turmoil and upheaval of the Vietnam era.  But he also played an influential role in deliberations over the role of secrecy in scientific research.

Dr. Corson chaired a 1982 committee of the National Academy of Sciences that produced a landmark study entitled “Scientific Communication and National Security,” which became known as the Corson Report.

In sober and measured tones, the Corson Report pushed back against calls for increased secrecy in government-funded science:

“Current proponents of stricter controls advocate a strategy of security through secrecy. In the view of the Panel security by accomplishment may have more to offer as a general national strategy. The long-term security of the United States depends in large part on its economic, technical, scientific, and intellectual vitality, which in turn depends on the vigorous research and development effort that openness helps to nurture…  Controls on scientific communication could adversely affect U.S. research institutions and could be inconsistent with both the utilitarian and philosophical values of an open society.”

President Reagan cited Dr. Corson in National Security Decision Directive 189, “National Policy on the Transfer of Scientific, Technical and Engineering Information,” which seemed to affirm that fundamental research should remain unrestricted to the maximum extent possible.  In fact, however, that directive imperfectly reflected the input of the Corson Report, noted Harold C. Relyea in his book “Silencing Science: National Security Controls and Scientific Communication.”

Still, many of the issues identified by Dr. Corson and his colleagues, and the concerns they expressed, remain current today and have not reached an unequivocal resolution, as evidenced most recently by the latest U.S. government policy on dual use biological research.

Certain types of life science research involving “high consequence pathogens and toxins” would be subject to new review and risk mitigation procedures which might include classification of the research or termination of the funding, according to a U.S. government policy issued yesterday by the National Institutes of Health.

The policy applies to research involving 15 specified biological agents and toxins which “pose the greatest risks of deliberate misuse with most significant potential for mass casualties or devastating effects to the economy, critical infrastructure or public confidence.”

Research that increases the lethality or transmissibility of the agent or toxin, or otherwise enhances its harmful consequences, will be subject to the new review procedures.

Based on the outcome of the review, a risk mitigation plan may be developed.  If less restrictive measures were deemed inadequate, the new policy would allow for national security classification of the research or termination of government funding.

See “United States Government Policy for Oversight of Life Sciences Dual Use Research of Concern,” March 29, 2012.

See also “U.S. Requires New Dual-Use Biological Research Reviews” by David Malakoff, Science Insider, March 29.

Constitutional government in the United States is alive and well.  At least, that is the hopeful conclusion of Jack Goldsmith’s stimulating new book “Power and Constraint.”

Goldsmith, a former head of the Bush Administration’s Office of Legal Counsel, disputes the widely accepted view that traditional checks and balances have been diminished by the war on terrorism.  According to the conventional account, the post-9/11 national security bureaucracy produced waterboarding, detention without trial, unlawful surveillance and other anomalies, while the enforcement of existing legal norms was crippled, oversight bodies were passive and uncommunicative, secrecy was rampant and impunity prevailed.

This is a superficial and erroneous perspective, Goldsmith contends.  If anything, he says, the mechanisms of oversight have flourished as never before and their ongoing impact on national security policy has been profound though not widely recognized.

While there has been nothing like a “truth commission” or a congressional Church Committee investigation to provide a full public account and evaluation of the government’s conduct of the war on terrorism, other types of oversight have more than filled the void, the author argues.  He cites the investigation of the CIA detention and interrogation program by CIA Inspector General John Helgerson, and subsequent reviews.

“No CIA program — including the ones that underlay the Iran-Contra scandal and the many investigated during the Church and the Pike Committee hearings — has ever undergone so much extended or critical scrutiny.  In the process both the CIA and the accountability system governing it changed fundamentally.”

Similarly, through the efficacy of internal and external oversight, the use of torture has been ended, habeas corpus has been reaffirmed, military commissions have been brought under the authority of law, and so forth.

In Goldsmith’s telling, the Presidency is a massively powerful Gulliver which is nevertheless constrained by a growing number of Lilliputian threads that limit executive freedom of action in new and unprecedented ways.  Journalists, military and civilian lawyers, human rights activists and civil liberties organizations are portrayed as powerful and influential forces that have materially altered national policies.  This contention has all the more weight — and cannot be easily dismissed as (self-)flattery or wishful thinking — because the author does not particularly share the agenda of these diverse actors.

“The dizzying and often painful swirl of investigations, lawsuits, reviews, reports, and accusations… forces the government to recalibrate its counterterrorism policies and accountability mechanisms constantly based on ever-changing information and ever-changing legal and political constraints,” he writes.

Yet this does not mean that all is well, or that anyone can rest easy.

“Many… remain alarmed by what they see as endless and undefined war, excessive presidential secrecy, insufficient judicial review of the President’s actions, too much surveillance, inadequate congressional involvement, and many other evils of the post-9/11 presidency.  They continue to push hard against the government with lawsuits, FOIA requests, accountability campaigns, and strident charges against public officials.”

And, he says, that’s good.  “This is all very healthy for the presidency and for national security.”

No one that Goldsmith spoke with — from executive branch and congressional officials to reporters, human rights organizations, and public interest activists — believes that political conditions are optimized to advance their own interests.  “They all believed that they are on the losing end of the stick in trying to influence U.S. counterterrorism policies and their associated accountability mechanisms.”

But what has been achieved, in the author’s view, is “a harmonious system of mutual frustration.”

“Power and Constraint” has many virtues, beginning with its respectful presentation of multiple contrasting perspectives on the issues it explores.

Goldsmith acknowledges the fundamental and destabilizing uncertainties that preclude a final settlement of counterterrorism policy:  “We do not know precisely how serious the Islamist terrorist threat is, or the likelihood of an attack, or its likely location or scale, or how much investment in what types of policies would best prevent attacks.”

Moreover, “even if all of the factual and legal questions were resolved, the assessment of proper counterterrorism policies and accountability mechanisms would still be guided by moral intuitions that are more diverse than we like to admit.  Many find waterboarding, military commissions, and detention without trial repulsive;  many others do not.”

The book includes a nuanced discussion of leaks of classified information, and of the role of secrecy more broadly, as well as the responses it has engendered.

“There are costs and benefits to national security from both secrecy and disclosure,” Goldsmith observes, “but we do not have great tools to measure or compare them.”

The latest issue of the Army’s Military Intelligence Professional Bulletin is devoted to the Human Terrain System (HTS), which is a U.S. Army program to conduct social and cultural studies in support of military operations in Iraq and Afghanistan.  The Bulletin provides theoretical and practical accounts from HTS personnel in the field.

Thus, HTS analyst John Thorne writes that U.S. counterinsurgency operations can themselves generate a violent reaction “by causing shifts in perceptions of relative power or well-being, or through perceived threats to identity.”

The Army released the latest Bulletin in response to a Freedom of Information Act request.

The Human Terrain System program has been controversial among some social scientists who believe it wrongly subordinates scientific research to U.S. military imperatives.

The Open Society Foundations will host a discussion on “National Security Secrecy and Surveillance: Defending the Public’s Right to Know” on April 4 in New York City.

I will moderate a panel of speakers including NSA whistleblower Thomas Drake, Jesselyn Radack of the Government Accountability Project, investigative journalist Timothy Shorrock, and ACLU attorney Jameel Jaffer.

Seating is limited.  For more information and to RSVP see here.

Updated below

A certain technology that could extend the mission duration and capabilities of unmanned aerial vehicles (UAVs) was favorably assessed last year by scientists at Sandia National Laboratories and Northrop Grumman Systems Corporation.  But they concluded regretfully that “current political conditions will not allow use of the results.”

The assessment was carried out to explore the feasibility of next generation UAVs.  The objective was “to increase UAV sortie duration from days to months while increasing available electrical power at least two-fold,” according to a June 2011 Sandia project summary.

And that objective could have been achieved by means of the unidentified technology, which “would have provided system performance unparalleled by other existing technologies,” the project summary said.

“As a result of this effort, UAVs were to be able to provide far more surveillance time and intelligence information while reducing the high cost of support activities.  This technology was intended to create unmatched global capabilities to observe and preempt terrorist and weapon of mass destruction (WMD) activities.”

But it was all for nought.

“Unfortunately, none of the results will be used in the near-term or mid-term future,” the project summary stated.  “It was disappointing to all that the political realities would not allow use of the results.”

Not only that, but “none of the results can be shared openly with the public due to national security constraints.”

On close reading, it seems clear that the Sandia-Northrop project contemplated the use of nuclear technology for onboard power and propulsion.

The project summary, which refers to “propulsion and power technologies that [go] well beyond existing hydrocarbon technologies,” does not actually use the word “nuclear.”  But with unmistakable references to “safeguards,” “decommissioning and disposal,” and those unfavorable “political conditions,” there is little doubt about the topic under discussion.

Furthermore, the project’s lead investigator at Sandia, the aptly named Dr. Steven B. Dron, is a specialist in nuclear propulsion, among other things.  He co-chaired a session at the 2008 Symposium on Space Nuclear Power and Propulsion at the University of New Mexico.

Interestingly, opposition to flying nuclear power sources in this case was internalized without needing to be expressed, and the authors were self-deterred from pursuing their own proposals.  “The results will not be applied/implemented,” they stated flatly.

Meanwhile, integration of (conventional) unmanned aircraft systems into the National Airspace System will proceed, as mandated by Congress.  On March 6, the Federal Aviation Administration issued a request for public comments on the pending designation of six UAS test sites around the country.

Last month, the Electronic Privacy Information Center and other public interest organizations petitioned the FAA “to conduct a rulemaking to address the threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.”

Update: Sandia National Laboratories issued the following statement regarding this story:

“Sandia is often asked to look at a wide range of solutions to the toughest technical challenges. The research on this topic was highly theoretical and very conceptual. The work only resulted in a preliminary feasibility study and no hardware was ever built or tested. The project has ended.”

The Government Accountability Office has overcome longstanding opposition to its role in intelligence oversight, and has been conducting several projects involving oversight of intelligence agencies.  A classified GAO review of FBI counterterrorism programs has been completed, and a GAO investigation of the role of contractors in intelligence is in progress.

Last year, acting at congressional direction, Director of National Intelligence James Clapper issued an Intelligence Community Directive that authorized and required U.S. intelligence agencies to cooperate with GAO investigators, with certain restrictions.  (“Intelligence Agencies Are Told to Cooperate with GAO,” Secrecy News, May 16, 2011).

That DNI directive appears to have broken the logjam of agency resistance, and at least some parts of the intelligence community that previously rebuffed GAO inquiries have become completely cooperative, congressional officials said.

Thus, the Federal Bureau of Investigation had refused for years to submit to GAO oversight of its counterterrorism programs.  The Bureau contended that GAO had no authority to review the programs because they were funded through the intelligence budget.  Moreover, the FBI told Sen. Charles Grassley that the Office of Legal Counsel had ratified that position and supported its refusal to cooperate with GAO.

But that is now in the past.  The GAO recently completed a classified assessment of FBI counterterrorism programs with full cooperation from the FBI.  A public version of the report is expected to be released sometime in the spring.

Another current GAO project explores “Civilian Agencies’ Reliance on Contractors.”  An unclassified statement of work for the project that was obtained by Secrecy News explains:

“When intelligence agencies rely on contractors for professional and management support services that inform government decisions, the risk of contractors unduly influencing these decisions is increased.  However, the extent to which this risk has been considered and managed is uncertain.”

The GAO project therefore aims to answer the following questions:

“(1) To what extent do civilian intelligence agencies rely on and strategically review their reliance on contractors to perform critical professional and management support services?  (2) To what extent do these agencies have policies and guidance that address the use of contractors for these services?  (3) What steps have these agencies taken to manage the risks associated with using contractors for these services?  (4) To what extent have these agencies addressed challenges with retaining federal personnel?”

GAO’s newly enhanced participation in the oversight process is the outcome of years of advocacy and debate involving a variety of interested parties.  Testimony on the subject from the Federation of American Scientists in 2008 is here.

The arduous process by which an accommodation was finally reached is detailed in a newly updated report from the Congressional Research Service.  See Congressional Oversight of Intelligence: Current Structure and Alternatives, March 14, 2012 (esp. pp. 25-30).

By itself, GAO’s involvement in intelligence oversight is unlikely to resolve many controversies in intelligence policy.  It may not resolve any of them.  But what it can do is to expand the current capacity of intelligence oversight, bringing new resources to bear and increasing the likelihood that intelligence activities are carried out consistent with law and good policy.