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Scientist Stewart Nozette has pleaded guilty to attempted espionage and will be sentenced this week to an anticipated 13 year prison term.  But he never committed espionage in fact and he would never have considered the possibility if he had not been “manipulated and exploited” by FBI agents, his attorneys wrote in a lengthy rebuttal to a pre-sentencing memorandum filed by the government last week (“Scientist Nozette Called Brilliant, Greedy Traitor,” Secrecy News, March 13.)

“Contrary to poisonous inferences which the government spread on the public record in its initial Complaint and the detention hearing, this case is not about a man who had been committing acts of espionage for years,” Nozette’s attorneys wrote.  “Rather this case is about the FBI wrongly suspecting Dr. Nozette was spying for Israel and then malevolently targeting him in the hopes they could ultimately ensnare him within the nation’s espionage laws.”

From their very first meeting, the FBI undercover agent “ignor[ed] Dr. Nozette’s stated intent not to provide classified information and overtly encourag[ed] him to proceed otherwise,” the attorneys wrote in what they said was simply an effort to correct the record.

“Dr. Nozette is neither attempting to withdraw from his plea nor evade responsibility for his conduct.  His response to the UC’s [undercover agent’s] entreaties was inappropriate and ill-advised regardless of the devious, manipulative and exploitive nature of those overtures….  But it is important that the public, and the scientific community in particular, be aware of the tactics engaged in and the judgment, or lack thereof, exercised by the agents of the FBI and the Department of Justice in this case.”

“At the end of the day it was the agents of the FBI who approached Dr. Nozette, not the other way around;  and it was those same agents who created, manipulated and exploited the circumstances that led to this offense and sadly to Dr. Nozette’s unnecessary fall and disgrace,” they concluded.

Government attorneys immediately filed a reply, rejecting what they called “spurious allegations and attacks against dedicated law enforcement agents.”

“In the end, defendant is the only person to blame for his predicament,” they wrote.  “There is no excuse for betrayal of one’s country.  There is no excuse for defendant’s conduct.”

Update: On March 21, Stewart Nozette was sentenced to a 13 year prison term.

The American soldier who is accused of killing 16 Afghan civilians is under the legal jurisdiction of the U.S. government and is immune from prosecution under Afghan law, says a newly updated report from the Congressional Research Service.

Afghan officials had said they wanted the soldier to be tried in Afghanistan, not in an American military court, the New York Times and other press outlets reported.

But according to CRS, the Status of Forces Agreement (SOFA) between the US and Afghanistan dictates otherwise.

“In the case of Afghanistan, the SOFA, in force since 2003, provides that U.S. Department of Defense military and civilian personnel are to be accorded status equivalent to that of U.S. Embassy administrative and technical staff under the Vienna Convention on Diplomatic Relations of 1961,” the CRS report said.

“Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The Government of Afghanistan has further explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel.”

“Thus, under the existing SOFA, the United States would have jurisdiction over the prosecution of the servicemember who allegedly attacked the Afghan civilians.”

A copy of the CRS report was obtained by Secrecy News. See Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, March 15, 2012.

After former CIA officer Ishmael Jones wrote a book about the CIA without gaining prior approval from the Agency, the government sought and won a judicial ruling that Jones had acted in violation of his CIA secrecy agreement, and that he could be held liable for the breach.

But the government’s current efforts to seize the financial proceeds from Jones’ 2010 book, “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture,” have been frustrated by the fact that the author has already given the proceeds away to charity.

In responses to interrogatories that were presented in a government motion last week, Mr. Jones (a pseudonym) said that he had received $29,750 from the publication of his book.  But when he got the money, he placed it in custodial accounts for children of American soldiers who died in combat.

“Once Mr. Jones received the Payments, he created accounts that he manages but does not own,” his attorney explained to the government.  “All Accounts are located at Vanguard.  The accounts are Uniform Gift to Minors Accounts at Vanguard for four children and [another] Vanguard LLC jointly owned by five children.”

“Of the total of nine children, eight are children of American soldiers killed in action.  The ninth is not a U.S. citizen and is the daughter of an Iraqi agent with whom Ishmael Jones worked and was later murdered.  The amount of author profits deposited into these accounts is 100%.  The children that own these accounts will be able to take possession of them when they reach the age of 18.”

The government acknowledged that “there is no evidence that Jones retained any proceeds from the sale of ‘The Human Factor’; instead, he appears to have given his profits away.”

Under the circumstances, the government is not seeking to recover those proceeds.  “The United States is not seeking to impose a constructive trust over proceeds over which Jones lacks possession or control.”

Instead, the government asked the court to rule that in the future Jones should not be allowed to retain any additional proceeds that he may receive.

“The United States is entitled to a constructive trust over any future revenues, gains, profits, royalties, or other financial advantages from ‘The Human Factor’ that Jones derives,” the government motion said.

In the responses to interrogatories, Jones’ attorney said “Mr. Jones may receive additional payments from future book sales, but [he does] not expect such payments to occur.”

Meanwhile, “the accounts [Jones] set up for minor children are taxable accounts and therefore contributions to them are not eligible for tax deductions. Mr. Jones pays the taxes on those accounts.”

Two weeks ago, Judge Richard W. Roberts issued an extraordinary ruling that a secret government document was not properly classified and must therefore be released under the Freedom of Information Act. (“Court Says Agency Classification Decision is Not ‘Logical’,” Secrecy News, March 2.)

Now the question is whether the government will accept the ruling and abide by it, or challenge it.

That hasn’t been decided yet.  The U.S. Trade Representative (USTR), which classified the document, “has not yet determined whether to appeal the February 29 judgment,” the court was told in a stipulation filed this week.

But the choice that the government makes could have far-reaching implications.  What is at stake is whether or not the Freedom of Information Act can serve as an effective means to curb overclassification.

If Judge Roberts’ ruling stands, and the document is released, the judicial system will have succeeded in correcting a manifest classification error despite the prior failure of all executive branch oversight mechanisms to do so.  The ruling would serve as a precedent and an inspiration for further classification challenges.

The document itself is probably of limited interest and its disclosure of little concern to the Administration.  But the court ruling requiring its disclosure is a different matter that raises potentially thorny issues.

There is a school of thought which holds that national security classification is exclusively an executive branch function that stems from the President’s constitutional role as commander-in-chief of the armed forces.  From this point of view, any judicial incursion on classification decisions is an intolerable infringement on presidential authority.

Taken to an extreme, this perspective would imply that the Freedom of Information Act itself is unconstitutional.  The FOIA allows for independent judicial review of executive branch classification decisions, and creates at least the possibility that those decisions will be overturned, as in the present case.

This conflict between the FOIA and an expansive view of executive authority normally remains latent, because judges almost never order an agency to release a classified document.  Instead, courts typically defer to the executive on questions of national security.  In close cases, and when an agency senses that its own position is weak, it will often declassify and release a document without being ordered by the court to do so.  It thereby preserves at least the appearance of autonomy and exclusivity in classification policy.

On the rare occasions when a court has ordered declassification or release of a classified document, the decision has usually been vacated on appeal or mooted for technical reasons.  See this 1995 Justice Department “History of Exemption 1 Disclosure Orders.”  With Judge Roberts’ ruling, that history will need to be revised.

New mechanisms for correcting classification errors and abuses are needed throughout the national security classification system.  Judge Roberts’ decision holds the promise that the courts could serve as one such mechanism.  But this promise will be realized only if the Obama Administration accepts the principle of judicial review of classification decisions.

What would happen if a 10 kiloton nuclear explosive were detonated in downtown Washington, DC at the intersection of 16th and K Streets NW?

That question is posed by a recent study (large pdf) performed for the Federal Emergency Management Agency.  It assesses the impact of a nuclear terrorism incident in the nation’s capital and seeks to derive the appropriate lessons for emergency response planning purposes.

It is clear that a nuclear detonation would “overwhelm response resources in the area.”  On the other hand, “the existing Washington, DC structures offered better than adequate protection [for a] shelter-in-place strategy [that] would reduce the number of potential acute radiation casualties by 98%,” the study said.

See “National Capital Region: Key Response Planning Factors for the Aftermath of Nuclear Terrorism” by B.R. Buddemeier, et al, Lawrence Livermore National Laboratory, November 2011.

Scientist Stewart Nozette, who pleaded guilty to attempted espionage after offering to sell classified information to an undercover FBI agent who posed as an Israeli intelligence officer, will be sentenced this month to a likely term of 156 months incarceration.

In a dismal sentencing memorandum this week, the government portrayed Nozette as both gifted and twisted.

“That defendant [Nozette] was by all accounts a brilliant scientist makes this crime especially troubling,” the memo stated.  “His statement to the undercover FBI agent that anything ‘that the U.S. has done in space I’ve seen’ was not hyperbole.”

“Defendant’s experience in the space arena was diverse and impressive.  His related accomplishments in the field were matched by few, if anyone else, on the planet.”

But “despite his exceedingly comfortable lifestyle in Chevy Chase, Maryland, he had expensive tastes which stretched him financially.  He thus chose to supplement his income unlawfully…. Defendant all too eagerly agreed to be a traitor to the United States and did so with obvious glee and with no apparent remorse or hesitation,” the memo said.

Dr. Nozette, whom I knew slightly years ago, “has a profound intellectual gift. One need only walk steps away from the courthouse to the National Air and Space Museum of the Smithsonian Institution to view the prototype of the Clementine satellite, part of the Clementine bi-static radar experiment which purportedly discovered ice on the south pole of the moon, the concept for which defendant first sketched out in a burst of brilliance on a paper napkin.”

“He has squandered his considerable gift…. His legacy now, first and foremost, is not what is found within the Smithsonian Institution or within various Sensitive Compartmented Facilities throughout various agencies of the United States. His legacy is now what has occurred before this Court. He is someone who agreed to be a traitor to the United States. For all of the defense arguments about his state of mind at the time of the crime, he remains, at his core, a man willing to betray his country because of greed,” prosecutors told the court.

As a condition of his plea agreement, which lowered his sentence recommendation from 262 months to 156 months, Nozette was debriefed by law enforcement and intelligence officials.  But “the value of these debriefings was limited. Defendant provided no actionable information. There were times that defendant’s professed lack of recollection was baffling. There were other times when the FBI assessed that defendant gave uncooperative, less than complete, or untruthful responses. The Government, however, will not seek to hold defendant in breach of his plea agreement as, in the end, this plea results in an acceptable sentence, and saves the Government enormous resources.”

Nozette’s sentencing hearing is scheduled for March 21 in DC District Court.

As long ago as the Gerald Ford Administration, the National Security Agency was directed to help secure non-governmental communications networks against intrusion and interception by foreign — or domestic — entities, according to a recently declassified presidential directive.

“The President is concerned about possible damage to the national security and the economy from continuing Soviet intercept of critical non-government communications, including government defense contractors and certain other key institutions in the private sector,” wrote National Security Advisor Gen. Brent Scowcroft in National Security Decision Memorandum (NSDM) 338 of September 1, 1976.

“The President further recognizes that U.S. citizens and institutions should have a reasonable expectation of privacy from foreign or domestic intercept when using the public telephone system. The President has therefore decided that communication security should be extended to government defense contractors dealing in classified or sensitive information at the earliest possible time. He has also directed that planning be undertaken to meet the longer-term need to protect other key institutions in the private sector, and, ultimately, to provide a reasonable expectation of privacy for all users of public telecommunications.”

The directive ordered that “in confirmed threat areas,” existing communications networks involving classified information should be transitioned from microwave circuits to secure cable “as soon as possible.”  A broader plan to protect non-governmental communications was also to be prepared.

“The President further directs the Director of the Office of Telecommunications Policy, with the participation and assistance of DOD and NSA, to prepare a detailed Action Plan setting forth the actions and schedule milestones necessary to achieve a wide degree of protection for private sector microwave communications. The Plan should identify needed policy and regulatory decisions, describe in detail the roles of industry and government, including management and funding considerations, and integrate the schedule for these actions with the technical development milestones.”

“The Action Plan should be based on the fundamental objective of protecting the privacy of all users of public telecommunications, as well as satisfying specific needs of the government,” the directive stated.

The 1976 directive was originally marked TOP SECRET / SENSITIVE (XGDS), where XGDS stood for “exempt from general declassification schedule.”  It was declassified on September 13, 2011.  The document had been requested through the mandatory declassification review process by Dr. John Laprise of Northwestern University.

The directive prefigures an ongoing controversy over the proper role, and the actual extent, of National Security Agency involvement in securing public communications.

In response to a FOIA lawsuit brought by the Electronic Privacy Information Center, the NSA said (and a court affirmed) that it could “neither confirm or deny” a relationship between the Agency and Google.  NSA has also refused to release the 2008 National Security Presidential Directive 54, which reportedly tasks the Agency with certain cybersecurity functions.

The Watergate scandal was a formative episode in American political culture that powerfully reinforced public skepticism towards government and fostered a heroic image of the intrepid reporter aided by his truth-telling source.  But the reality, as usual, is more complicated than the received narrative.  In a fascinating new book, “Leak: Why Mark Felt Became Deep Throat,” Max Holland probes deep into the record of Watergate to illuminate some of those complications.

The question that Holland sets out to answer is the nature of “Deep Throat’s” agenda.  What drove FBI official Mark Felt to disclose sensitive investigative information about the Watergate burglary and the ensuing coverup to Bob Woodward of the Washington Post?  What were his motivations and what was he hoping to accomplish?

Holland pays close attention to what Felt told Woodward (and when), what Felt could have told Woodward but did not, and what he told Woodward that was not actually true.

His conclusion, spelled out at the beginning of the book, is that Felt’s actions are best understood in the context of the struggle over who would succeed J. Edgar Hoover as director of the FBI.  Felt hoped it would be him.

“More than any other single factor, the desperate, no-holds-barred war of succession explains why Mark Felt did what he did, and to a considerable extent, why the scandal played out in the media as it did,” Holland writes.  “The contest to succeed Hoover was perceived as a once-in-a-generation opportunity, and it brought out the worst in the Bureau and Mark Felt.”

“The portrait of Felt that emerges when we follow this thread does not resemble any of Bob Woodward’s depictions,” in Holland’s judgment.  “Felt held the news media in contempt and was neither a high-minded whistle-blower, nor was he genuinely concerned about defending his institution’s integrity.”

“Woodward believed that he and Felt were on the same side, allies in the struggle to expose the facts and larger truth.  For Felt, however, their relationship was simply a means to the end of becoming FBI director.  If that end was best served by salting the information he gave Woodward with details that had only a casual relationship with the facts, so be it.”

Strictly speaking, Felt’s motives in leaking information are of secondary importance, if not quite irrelevant.  Holland cites an observation by Timothy Noah that “If the free flow of vital information about our government depended on the purity of heart of all concerned, we would know very little.  Happily, we are as likely to learn what we need to know through the pursuit of cheap advantage.”

Still, Holland says, “a recognition that Felt was seeking personal advancement first and foremost would have led to heightened scrutiny of his claims and a better version of the obtainable truth.”

More broadly, a reader of the book will be reminded to question the motives of sources, especially anonymous sources.  Further, one may conclude that the mantle of “whistleblower” is not one to be lightly claimed or bestowed.  (Some may feel that publishing collections of stolen email, for example, does not qualify.)

“Leak” is a work of impressive scholarship, yet it is vividly told and quite engrossing.  Reading it on the subway, I missed my stop.  The book benefits from the intrinsic drama of Watergate, and from the enduring impact of Woodward and Bernstein’s book (and Redford’s movie) “All the President’s Men.”  For better or worse, the story is one that transcends its time.

“Leak: Why Mark Felt Became Deep Throat” by Max Holland was published last week by University of Kansas Press.

The book was recently reviewed by Jack Shafer, Glenn Garvin, and John Dean.

U.S. special operations forces are engaged in “more than 100 countries worldwide,” said Adm. William H. McRaven, commander of U.S. Special Operations Command (SOCOM), in testimony before the Senate Armed Services Committee yesterday.

“In significant ways, our forces are creating visible and dramatic effects of the greatest magnitude across the globe,” Adm. McRaven said in the 2012 US SOCOM posture statement.

“The decade of war after 9/11 has proffered many lessons; among them, specific to SOF, is the complementary nature of our direct and indirect approaches and how these SOF approaches are aligned to this changing strategic environment,” Adm. McRaven said.

“The direct approach is characterized by technologically-enabled small-unit precision lethality, focused intelligence, and interagency cooperation integrated on a digitally-networked battlefield…. Extreme in risk, precise in execution and able to deliver a high payoff, the impacts of the direct approach are immediate, visible to the public and have had tremendous effects on our enemies’ networks throughout the decade.”

“However, the direct approach alone is not the solution to the challenges our Nation faces today as it ultimately only buys time and space for the indirect approach and broader governmental elements to take effect. Less well known but decisive in importance, the indirect approach is the complementary element that can counter the systemic components of the threat.”

“The indirect approach includes empowering host nation forces, providing appropriate assistance to humanitarian agencies, and engaging key populations. These long-term efforts increase partner capabilities to generate sufficient security and rule of law, address local needs, and advance ideas that discredit and defeat the appeal of violent extremism.”

“As Al Qaeda and other extremist organizations attempt to franchise their ideology and violence globally, we will likely remain engaged against violent extremist networks for the foreseeable future,” he said.

In a rare unclassified “notification of special forces operation,” President Obama formally advised Congress last January of the rescue of an American in Somalia.

“At my direction, on January 24, 2012, U.S. Special Operations Forces conducted an operation in Somalia to rescue Ms. Jessica Buchanan, a U.S. citizen.  The operation was successfully completed,” President Obama wrote.  The report was transmitted “as part of my efforts to keep the Congress fully informed.”

Questions of compliance with law now arise in every aspect of U.S. military operations, including the most highly classified clandestine activities, and so legal assistance must be routinely factored into military planning and mission execution.  A newly updated Army manual describes the diverse forms of legal support to military operations.

“Legal issues are a fundamental part of modern military operations,” the manual observes.  “Assigning JAGC [Judge Advocate General’s Corps] Soldiers directly to warfighting units has become commonplace.”

“While the legal intensity of military operations is a relatively recent phenomenon, lawyers in uniform are not new” and date back to pre-Revolutionary War times.

“Judge advocates serve at all levels in today’s are of operations and advise commanders on a wide variety of operational legal issues.  These issues include the law of war, rules of engagement, lethal and nonlethal targeting, treatment of detainees and noncombatants, and military justice.”

“Following the terrorist attacks of 11 September 2001, JAGC Soldiers have deployed in large numbers in support of operations in Afghanistan, Iraq, and elsewhere.  Current operations continue to give rise to significant legal issues.  As a result, judge advocates are in high demand in operations.”

The need for legal support extends to irregular warfare and clandestine missions performed by special operations forces (SOF).

“The practice of international and operational law is of particular emphasis as special operations missions are legally and politically sensitive, especially in the absence of international armed conflict,” the manual states.  “Judge advocates advise the commander on traditional law of war issues, as well as the requirements of domestic United States law (such as fiscal, security assistance, and intelligence oversight laws) and broader international law requirements.”

“Due to the political sensitivities associated with many SOF direct action missions, judge advocates [must] thoroughly understand the rules of engagement.”

“In many instances, special forces will conduct counterterrorism operations unilaterally due to the political sensitivities of the United States as well as the host nation.  This will often present issues of sovereignty.  Of equal importance will be any issues addressing associated detention operations and intelligence exploitation.”

See “Legal Support to the Operational Army,” Field Manual (FM) 1-04, 26 January 2012.

The newly updated Army manual does not address the law of armed conflict.  That topic is treated in the much older, but still current, FM 27-10, “The Law of Land Warfare,” July 1956.

An overview of the military justice system, including the conduct of Army courts-martial, is provided in “Legal Guide for Commanders,” FM 27-1, January 1992.

In an opinion published this week, DC District Judge Richard W. Roberts did an astonishing thing that federal courts almost never do:  He probed into the decision to classify a government document and concluded that it was not well-founded.  He ordered the agency to release the document under the Freedom of Information Act.

The Center for International Environmental Law had sued the Office of the U.S. Trade Representative (USTR) to obtain a one-page position paper concerning the U.S. negotiating position in free trade negotiations.  The USTR denied the document, which it said was classified, on grounds that the parties to the negotiation had agreed that their records would not be disclosed prior to the end of 2013.

The USTR contended that release of the document would engender a loss of confidence among U.S. negotiating partners and weaken the position of the U.S. in future negotiations.  It was classified “Confidential” because its disclosure could reasonably be expected to cause harm to U.S. foreign relations, USTR said.

But Judge Roberts rejected this line of argument, particularly since the document in question was a U.S. Government record, not foreign government information that had been provided in confidence.

“There is… a meaningful difference between the United States’ disclosure of information that it receives in confidence from a foreign government, with the foreign government’s understanding that the information will be kept secret, and the United States’ disclosure of a document that it itself created and provided to others,” he wrote.

“USTR… fails to provide a plausible or logical explanation of why disclosure of Document 1 reasonably could be expected to damage United States’ foreign relations,” Judge Roberts concluded.  Therefore, he ruled that it could not be withheld.

In the context of FOIA litigation, this is an extraordinary opinion.

Ordinarily, courts defer to executive branch agencies on questions of national security classification.  It’s true that FOIA requires that information must be “properly” classified in order to be exempt from disclosure.  But the term “properly” has usually been interpreted to mean procedurally proper, not substantively proper.  In other words, courts ask if the classifier was authorized to classify and if other classification rules were correctly followed.  But unlike Judge Roberts, they do not normally ask whether the classification decision makes any sense.

Once the question of the merit of the document’s classification was permitted, the USTR postion could not be sustained.

Interestingly, the court did not specifically say that the document must be declassified.  Classification policy is not the court’s concern, particularly since it is not based in statute.  Rather, Judge Roberts simply ordered that the government must provide a copy of the document to the requester — whether it is classified or not.

The ruling is a rebuke not only to the USTR, which classified the document, but also to the Department of Justice, which chose to defend the case in court.  According to 2009 FOIA Guidelines issued by Attorney General Holder, the Department of Justice is only supposed to defend agency FOIA denials when disclosure would cause reasonably foreseeable harm or is prohibited by law.  In practice, however, there is no known case in which those Guidelines have led the Department to decline to defend a FOIA denial.

The new decision was first reported by Josh Gerstein of Politico in “Judge issues rare order to disclose classified document,” February 29.

Federal courts could do far more to curb unwarranted secrecy than they usually do, argued Meredith Fuchs, then-general counsel of the National Security Archive, in a 2006 law review article.  See “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,” Administrative Law Review, Winter 2006.

In response to a congressional directive, the Department of Defense Inspector General has provided to Congress “an inventory of all identified unauthorized disclosures of SCI [sensitive compartmented information, or classified intelligence] to the public within DoD from the past three calendar years.”  The classified IG report also described the actions taken by DoD in response to the leaks, including referrals to the Department of Justice for criminal investigation.

An unclassified version of the IG report, stripped of almost all of its content, was released yesterday.  See “Report on Sensitive Compartmented Information Leaks in the Department of Defense,” DoD Inspector General Report No. 2012-056, February 27, 2012

“We confirmed with DoD components that some unauthorized disclosures of SCI to the public did occur within DoD between December 23, 2008 and December 23, 2011. Among the unauthorized SCI disclosures to the public reported, a DoD Senior Official was directly attributed as a source of unauthorized SCI disclosures to the public,” the unclassified IG report stated. The DoD Senior Official was not identified in the published report.

The IG report includes previously undisclosed congressional language from the classified annex to the FY2012 House Defense Appropriations Bill:

“The Committee is appalled with the number of leaked classified and compartmented facts and reports that have occurred over the past three calendar years.  The sources and methods used for clandestine and covert activities are some of the most closely guarded secrets in the Department of Defense and intelligence community and the fact that these details are being exposed on a regular basis by ‘senior administration officials’ is of grave concern. These sources and methods are the life-blood of intelligence and will not be maintained or cultivated in the future if they continue to be exposed….  The Committee believes that these leaks are unacceptable, need to be investigated, and stopped.”

Among other things, the DoD IG response illustrates the fact that agency Inspectors General have the capacity to conduct detailed and exacting oversight of classification policy when they are assigned to do so.  See “DoD Inspector General Takes on Classification Oversight,” Secrecy News, February 8, 2012.