A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.  Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn’t matter even if the plaintiff’s allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

“A determination of whether Hegab’s security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA’s decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent,” Judge Cacheris wrote.

“Egan” here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.  A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in “Judicial Interpretations of Egan,” November 13, 2009.

The Department of Defense has prepared a guide (large pdf) for military personnel who are engaged in foreign disaster relief operations, an endeavor which arises with some frequency.

“The U.S. Government (USG) responds to approximately 70-80 natural disasters across the globe each year. In approximately 10-15 percent of these disaster responses, the Department of Defense (DoD) lends support to the overall USG effort.”

“DoD disaster assistance can range from a single aircraft delivering relief supplies, to a fullscale deployment of a brigade-size or larger task force. Though the overall percentage of disasters requiring DoD support is relatively small, these disasters tend to be crises of the largest magnitude and/or the greatest complexity.”

The new guide “offers an overarching guide and reference for military responders in disaster relief operations.”  See “Department of Defense Support to Foreign Disaster Relief,” GTA-90-01-030, 13 July 2011.

The Joint Chiefs of Staff have produced updated doctrine on intelligence support to military operations.  The new doctrine (pdf) reflects changes in intelligence organizations, roles and missions.

Among other things, the new publication introduces the term “biometric-enabled intelligence” or BEI.  “BEI is derived from the collection, processing, and exploitation of biometric signatures; the contextual data associated with those signatures; and other available information that answers a commander’s or other decision maker’s information needs concerning persons, networks, or populations of interest.”

See Joint Publication 2-01, “Joint and National Intelligence Support to Military Operations,” 05 January 2012.

 

The Army issued a new directive last week to govern the growing use of unmanned aircraft systems (UAS) or “drones” within the United States for training missions and for “domestic operations.”

“The Army’s unmanned aircraft systems represent emerging technology that requires access to the National Airspace System,” wrote Army Secretary John M. McHugh in a January 13 memorandum.

Towards that end, the Army produced a revised policy on UAS operations to support “expanded UAS access to the National Airspace System.”  A copy of the new policy was obtained by Secrecy News.  See Army Directive 2012-02, January 13, 2012.

Much of the Army’s UAS activity will be devoted to UAS operator training conducted at or near military facilities, the policy indicates.  But beyond such training activities, the military also envisions a role for UAS in unspecified “domestic operations” in civilian airspace, according to a 2007 Memorandum of Agreement between the Department of Defense and the Federal Aviation Administration, which regulates domestic air traffic.

The 2007 Memorandum, which is appended to the new Army directive, was said to “allow, in accordance with applicable law, increased access for DoD UAS into the elements of the NAS [National Airspace System] outside of DoD-managed Restricted Areas or Warning Areas.”

The 2007 agreement was intended to “ensure DoD UAS assets have NAS access for domestic operations, including the War on Terror (WOT)…. This guidance applies to all DoD UAS, whether operated by Active, Reserve, National Guard, or other personnel.”

A prior edition of the Army’s “Unmanned Aircraft System Flight Regulations,” which will be updated to incorporate the latest policy, can be found on the Federation of American Scientists web site here.

The Electronic Frontier Foundation last week filed a Freedom of Information Act lawsuit seeking information on domestic drone operations.

The Department of Energy has asked Congress to amend the Atomic Energy Act to allow certain nuclear weapons information that has been removed from the “Restricted Data” classification category to be restored to that category.

“Restricted Data” (RD) pertains to classified nuclear weapons design information.  It is distinguished from “Formerly Restricted Data” (FRD) which generally concerns the utilization of nuclear weapons.  (Despite the use of the word “formerly,” FRD is also a category of classified information.)

In a letter to Congress requesting the proposed amendment, Energy Secretary Steven Chu suggested that the current arrangement leaves some nuclear weapons design information inadequately protected.

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit,” Secretary Chu wrote in an August 4, 2011 letter that was released last week.  Energy Department officials did not respond to a request from Secrecy News for elaboration on this point.

But in a July 2010 statement to the Public Interest Declassification Board, Andrew Weston-Dawkes of the Department of Energy Office of Classification said that FRD today contains not only information on nuclear weapons utilization but also “some of the most sensitive design information.”  Specifically, he said that FRD includes design information on “safing arming and fuzing, use control information, [and] hardening.”

Such design information was removed from the RD category in order “to support the mission requirements of the Department of Defense and the Intelligence Community,” Secretary Chu explained in his letter.  But once removed, the information by law cannot be redesignated as RD without an amendment to the Atomic Energy Act.  Hence the DOE proposal to Congress.

The immediate implications of the proposal are probably quite limited, particularly since it applies only to “design information” and “foreign nuclear information” that is currently classified in any case (albeit as FRD or “TFNI,” for Transclassified Foreign Nuclear Information).

In the longer term, the authority to reclassify certain narrow categories of FRD as RD, if granted, may help to reduce DOE opposition to the elimination of the entire FRD category — which critics including the Federation of American Scientists have advocated — and its integration into the normal national security classification system.

The Public Interest Declassification Board, an advisory body on classification and declassification policy, has proposed that FRD records that are more than 25 years old should be treated like any other classified records for purposes of declassification review and processing.

But these changes would also require legislative action, which has not been requested by DOE.  Nor has Congress acted on Secretary Chu’s August 2011 proposal to date.

*       *       *

On January 10, the White House announced the appointment of Amb. Nancy E. Soderberg as chair of the Public Interest Declassification Board and the re-appointment of Elizabeth Rindskopf Parker as a member of the Board.

“Restricted Data” is the name of an informative new blog written by historian Alex Wellerstein “about nuclear secrecy, past and present.”  It often features fascinating archival discoveries along with the author’s historical insights.

“Born Secret” by Alexander DeVolpi, et al, is a thoughtful and meticulous account of the 1979 “Progressive” case in which the U.S. government sought to prevent the publication of H-Bomb design information gathered by researcher Howard Morland.  It has recently been reissued as an e-book.

In a brief filed Friday in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, prosecutors told the U.S. Court of Appeals that New York Times reporter James Risen should be compelled to testify at Mr. Sterling’s trial and to reveal whether it was Mr. Sterling who leaked information to him about a CIA program to disrupt Iran’s nuclear weapons program.

A lower court found that Mr. Risen had a “qualified reporter’s privilege” which exempted him from disclosing his sources in this case.  But prosecutors said the lower court ruling was in error and they asked the Appeals Court to overturn it. They said that unlike in certain civil cases, there is no reporter’s privilege to protect confidential sources in criminal cases.

Here, however, the disclosure of classified information is the alleged crime. As a consequence, what is at stake in this case, beyond the individual fate of Mr. Sterling, is the ability of reporters to protect their sources of classified information.  The Appeals Court is poised to either strengthen that ability or to significantly weaken it.

Prosecutors also disputed two other lower court rulings, which they said were “erroneous” and would cripple their case against Mr. Sterling, which has been suspended until the appeal is resolved.

“In three pretrial rulings, the district court severely circumscribed the government’s ability to prove these allegations and effectively terminated the prosecution,” prosecutors wrote in their 99-page pleading on January 13:

“First, the court held that Risen — the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator — had a First Amendment right to refuse to identify his source. This ruling suppressed the only direct evidence of Sterling’s crime.”

“Second, the court suppressed the testimony of two of the government’s key witnesses as a sanction for the late disclosure of alleged Giglio information [i.e. information pertaining to deals or promises made to the witnesses in exchange for their testimony]. The court found no evidence that the disclosure (which occurred less than 12 hours after the expiry of the district court’s discovery deadline and several days before trial) was the result of bad faith, and it never meaningfully considered granting a continuance or any other remedy before striking the witnesses. This decision had the effect of terminating the prosecution.”

“Third, the court announced that the government was required to disclose to the defendant and the jury the true names of several covert CIA officers and contractors who it intended to call to testify at trial. The court reached this conclusion despite having previously held that the government need not identify the witnesses by name in discovery or at trial because that information (which is classified) would not be useful or necessary to Sterling’s defense, could place the witnesses in significant danger, and could damage national security.”

“The district court’s rulings are erroneous. The government respectfully requests that this Court reverse those rulings and remand this case to the district court for trial,” prosecutors wrote.

The new prosecution brief, which was redacted for public release, provides a detailed account of the facts and the law of the Sterling case from the government’s perspective.

The brief says that Mr. Risen himself is not accused of engaging in criminal activity.  “Nonetheless, at Risen’s request, the government has agreed to grant Risen immunity from prosecution in exchange for his testimony, and thus the subpoena raises no Fifth Amendment [self-incrimination] concern,” the brief said.

Attorneys for Sterling and Risen will each respond with their own opening briefs on February 14.

In a portent of spending cuts that are still to come, the number of employees at the Office of the Director of National Intelligence (ODNI) dropped significantly over the past year.

Interestingly, one of the first visible signs of the reduction in the workforce was a decline in the level of ODNI classification activity, which dropped by 17.3% from the year before.

“The decrease in total [classification] decisions was largely driven by a 12.9% decrease in population size from last year,” wrote ODNI Information Management chief John F. Hackett in a November 7, 2011 report to the Information Security Oversight Office.  A copy was obtained by Secrecy News under the Freedom of Information Act.

A spokesman for ODNI public affairs said he could not immediately comment on the report, which may reflect a drop in staff as well as contractor personnel, both of which are authorized to generate classified information at ODNI.

A former ODNI official told Secrecy News that “hundreds” of ODNI jobs had been eliminated.  He said that the size of the ODNI workforce was on the order of 2000 people, and that the loss of hundreds of positions was consistent with the reported 12.9% “decrease in population size.”

The inequality of income among American taxpayers has grown markedly in recent years, the Congressional Research Service confirmed in a new study of U.S. tax records.

Even as total income grew between 1996 and 2006 (the last year for which individual tax data are available), many Americans were losing ground.

“Inflation-adjusted income actually fell for those in the bottom income quintile (the poorest 20% of tax filers) and almost doubled for the richest 0.1% of tax filers,” the CRS found. “Consequently, income inequality increased between 1996 and 2006.”

The CRS report identified multiple contributors to the growing inequality, including disparate changes in salaries, growth in capital income among high-income taxpayers and modifications of tax policy which exacerbated existing inequalities.

“Earnings inequality has been increasing over the past three decades, and the share of income from capital has increased for high-income tax filers. Furthermore, the 2001 and 2003 Bush tax cuts, while reducing taxes for almost all tax filers, reduced taxes for high-income tax filers to a greater extent than for lower-income tax filers.”

Of these, “Changes in capital gains and dividends were the largest contributor to the increase in the overall income inequality,” the CRS report said. See “Changes in the Distribution of Income Among Tax Filers Between 1996 and 2006: The Role of Labor Income, Capital Income, and Tax Policy,” December 29, 2011.

If nuclear fusion were ever to become a practical method of generating electrical  energy, there would be a continuing requirement to produce significant quantities of tritium for fusion reactor fuel.  The JASON scientific advisory panel was asked by the Department of Energy to assess the feasibility of large scale tritium production.  Its findings were presented in a new report obtained by Secrecy News.  See “Tritium,” November 2011.

A newly revised Army regulation prescribes the use of “red teams” that are assigned to try and penetrate the security of military communications, as if they were hackers or opposition forces.

“Red Team operations expose vulnerabilities by challenging an organization’s readiness and ability to protect information. Red Team activities focus on identifying an organization’s critical and classified information to show the operational impact of physical, information and operations security shortcomings,” the regulation explains. “To replicate a true adversary, certified Red Teams have the authority to access .mil networks from public domains through the use of remote operations.”

See “Communications Security Monitoring,” Army Regulation 380-53, December 23, 2011.

Among other changes to the previous edition of the regulation, the new revision “removes the requirement to obtain permission from the Assistant Secretary of Defense for Networks and Information Integration to conduct communications security monitoring in the National Capital Region.”

Updated below

The U.S. electric power grid is vulnerable to damage from severe electromagnetic solar storms and remedial measures should be taken to reduce that vulnerability, a new study (large pdf) from the JASON scientific advisory panel concluded.

On the other hand, the JASONs said, catastrophic worst-case scenarios advanced by some are not plausible, and they should not serve as a basis for policy making.

Public disclosure of the new JASON study was blocked by the Department of Homeland Security, which sponsored the analysis.  But a copy was obtained by Secrecy News.

“Concerns about the vulnerabilities of technical infrastructure to space weather have been growing since the sun entered the early stages of the current sunspot cycle in 2009, increasing prospects for severe solar storms,” the report said.

“We agree that the U.S. electric grid remains vulnerable,” the JASONs concluded.  “Mitigation should be undertaken as soon as possible to reduce the vulnerability of the U.S. grid.  The cost appears modest compared to just the economic impact of a single storm,” they added.

But the panel declined to endorse a worst-case scenario proposed in 2010 by J. Kappenman (large pdf), who envisioned “the possibility of catastrophic damage to the U.S. electric grid, leaving millions without power for months to years.”

“We are not convinced that the worst case scenario… is plausible.  Nor is the analysis it is based on, using proprietary algorithms, suitable for deciding national policy,” the JASON report said.

Instead, “a rigorous and fully transparent risk analysis should be done of the U.S. grid.”  See “Impacts of Severe Space Weather on the Electric Grid,” JASON report JSR-11-320, November 2011.

Ironically, the Department of Homeland Security, which requested the JASON study, refused to make it publicly available.  In a November 20 letter to the Federation of American Scientists, DHS said that no portion of the study would be released under the Freedom of Information Act because it was subject to the “deliberative process privilege.”  A copy of the report was obtained independently.

Update: By letter dated December 27, DHS amended its denial of our FOIA request and released the report.

Congress last week enacted the Intelligence Authorization Act for Fiscal Year 2012.

“The legislation we are approving today keeps funding for intelligence essentially flat from fiscal year 2011, representing the a meaningful reduction from the President’s request,” said Senate Intelligence Committee chair Sen. Dianne Feinstein (D-CA) on December 14.

Curiously, Rep. Mike Rogers (R-MI), the chair of the House Intelligence Committee, described the outcome somewhat differently on December 16:  “The bill is significantly below the President’s budget request for fiscal year 2012 and further still below the levels authorized and appropriated in fiscal year 2011.”

In both the House and the Senate action on the bill there was a conspicuous absence of public debate on any issue of intelligence policy.  No dissenting views were expressed.  Nor was there any discussion of or insight into current intelligence controversies.  For that, one must turn to other venues, such as “Secrecy defines Obama’s drone war” by Karen DeYoung in today’s Washington Post.