The Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.  After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith.  But his efforts were unavailing, and a court concurred with the CIA.

“All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands,” ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done “was to file suit in U.S. District Court challenging the Agency’s decision, in order to obtain permission to publish the book.”

That sounds reasonable enough.  But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir “Operation Dark Heart,” said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript.  But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book.  The text contains classified information, the government says, and he no longer holds a security clearance.  So he is out of luck.  Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer].  Shaffer does not need his manuscript or a secure computer, since “it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time.”  (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court — in order to demonstrate that the supposedly classified information in his original text is already public — may need to be sealed from public disclosure, the government said on October 28.  That is because “the association of that open source information with the book’s redactions may make the [author’s] declaration classified.”

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer’s attorney, in a reply filed last week.

“There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book,” Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer’s case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010).

The U.S. intelligence community needs an organization that can assess the impacts of climate change on U.S. national security interests in an open and collaborative manner, according to a new report from the Defense Science Board (DSB).

The Director of National Intelligence should establish a new intelligence group “to concentrate on the effects of climate change on political and economic developments and their implications for U.S. national security,” said the DSB report on “Trends and Implications of Climate Change for National and International Security” (large pdf).

The Central Intelligence Agency already has a Center on Climate Change and National Security.  So why would the Intelligence Community need an entirely new organization to address the exact same set of issues?

One reason is that the role envisioned for the new organization is inconsistent with the practices of the CIA Center.  So, for example, the new intelligence group would be expected to pursue cooperative relationships with others inside and outside of the U.S. government.  It would also “report most of its products broadly within government and non-government communities,” the DSB report said.

But the CIA Center, by unspoken contrast, does not report any of its climate change products broadly or allow public access to them.  (“At CIA, Climate Change is a Secret,” Secrecy News, September 22, 2011).

The CIA’s unyielding approach to classification effectively negates the ability of its Center on Climate Change to interact with non-governmental organizations and researchers on an unclassified basis.  Since, as the DSB noted, much of the relevant expertise on climate change lies “outside the government [in] universities, the private sector, and NGOs,” the CIA’s blanket secrecy policy is a potentially disabling condition.

In fact, the DSB report said, the secretive approach favored by CIA is actually counterproductive.

“The most effective way to tackle understanding [climate change] may be to treat it, for the most part, as an open question, transparent to all engaged in its study,” the DSB report said.  “Compartmentalizing climate change impact research can only hinder progress.”

There is “little likelihood” that the Central Intelligence Agency will be able to produce any records documenting the CIA’s implementation of the Fundamental Classification Guidance Review that each classifying agency is required to conduct, the Agency said last week.

The Fundamental Classification Guidance Review (FCGR) was ordered by President Obama in his December 2009 executive order 13526 (section 1.9) as a systematic effort to eliminate obsolete or unnecessary classification requirements.  It is the Obama Administration’s primary response to the problem of over-classification, and it has already achieved some limited results at the Department of Defense and elsewhere.

But it can’t possibly work if agencies don’t implement it.  And so far there is no sign of any such implementation at CIA, despite the fact that compliance is not optional.

In response to FOIA requests over the past year for records on the CIA’s progress in conducting its fundamental review, the CIA said it still had no records on the FCGR that are subject to the FOIA requests.

In an earlier response, “we informed you that a search was conducted and no records responsive to your request were located,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, on October 26.  “Although there is little likelihood that an updated search would produce different results, we will be glad to do so.”

Ms. Viscuso’s letter appeared to hint that responsive files might be contained in CIA “operational files” that are exempt from search and review under the CIA Information Act.  But such a claim would be substantively and legally spurious, especially since responsive records on the FCGR would have been “disseminated” outside of their source files (e.g. to the Information Security Oversight Office), which would nullify their exemption from search and review.

Meanwhile, another intelligence agency, the National Reconnaissance Office (NRO), proved more responsive.  The NRO said in a report on the FCGR (pdf) that was released last week under the FOIA that it had scheduled all of its classification guides for a fundamental review, as required.  The NRO, which is responsible for U.S. intelligence satellites, also said it was preparing an integrated classification guide that would be “more agile, timely, consistent, uniform, and flexible in providing classification guidance and principles at the lowest appropriate classification level.”

In the last few weeks, members of Congress have presented radically different estimates of the cost of the U.S. nuclear weapons program.  The disparate estimates, which vary by hundreds of billions of dollars, reflect a lack of consensus about how to properly assess the cost of nuclear weapons.

“The U.S. will spend an estimated $700 billion on nuclear weapons and related programs over the next ten years,” according to an October 11 press release from Rep. Ed Markey (D-MA).  Citing that estimate, which was based on an analysis by the Ploughshares Fund, Markey and 64 other Democratic members wrote to the Super Committee on Deficit Reduction to propose a cut of $200 million in spending on nuclear weapons.

But Rep. Mike Turner (R-OH) said last week that the entire nuclear weapons budget for the next ten years is only about $214 billion.  He said that the cuts proposed by Democrats would therefore “amount to unilateral and immediate nuclear disarmament by the United States” with “catastrophic impacts to our national security and global stability.”

In his own letter to the Super Committee, Rep. Turner, chair of a House Armed Services Subcommittee, cited November 2 testimony from Administration officials including Thomas D’Agostino of the National Nuclear Security Administration (NNSA), who said that “The 1251 report [on nuclear force structure] makes clear that the total for the Department of Defense and NNSA will cost approximately $200 billion over the next 10 years, not the $600 billion or so that some are claiming.”

That seemingly authoritative statement might have settled the issue — but it did not, according to Stephen I. Schwartz of the Monterey Institute of International Studies.

“Here’s the fundamental problem: No one in the government knows exactly how much has been spent or continues to be spent on nuclear weapons because there is not and has never been a unified, comprehensive budget to monitor all their costs across departments and agencies and over time,” said Mr. Schwartz, an author of several studies on nuclear weapons spending.

The nominal budget for nuclear weapons, said Mr. Schwartz, “excludes a number of very expensive and critical programs that make the nuclear arsenal usable, including overhead and support costs; most research and development costs for delivery systems and support equipment; all costs for tactical nuclear weapons; airlift and sealift costs for strategic and tactical nuclear weapons programs; most centralized command, control, communications programs associated with nuclear weapons; all intelligence programs that support the nuclear weapons mission; and some training costs.”

To remedy the ambiguity in nuclear budgeting, Mr. Schwartz proposed that Congress enact a new framework for financial transparency and accountability in the nuclear weapons program.  In principle, he said, such a framework should appeal to political leaders and analysts of all persuasions.

“If Congress (and the interested public) had a clear understanding of what it costs to sustain the nuclear arsenal, or of, for example, the annual expenditures required to secure vulnerable nuclear materials in the United States and overseas, we could have a rational and logical discussion about the costs and benefits of these programs.”

“Unfortunately, we do not, which means that rhetoric and assumptions will most likely replace facts when it comes to making important decisions about the future of US nuclear security spending,” he wrote in a recent paper.  See “Building Budgetary Transparency and Accountability for the US Nuclear Weapons Program” by Stephen I. Schwartz, September 8, 2011.

Last week, Rep. Maurice Hinchey (D-NY) asked President Obama to expedite the declassification of U.S. intelligence documents pertaining to Argentina’s so-called “dirty war” during the military dictatorship that lasted from 1976 to the mid-1980s. “The substantial backlog at the National Archives and Records Administration and history of unwillingness to declassify by U.S. intelligence agencies has led me to believe that systematic declassification is not a suitable solution,” Rep. Hinchey wrote on November 2, explaining his request for Presidential intervention.

A new U.S. Air Force policy directive on “Directed Energy Weapons” specifies that whenever such a weapon is developed within a tightly-secured Special Access Program, a legal review of the classified weapon will be conducted by the Air Force General Counsel to “ensure… that any such weapon complies with domestic and international law.”

A new report from the Congressional Research Service considers the use and abuse of synthetic drugs.  See “Synthetic Drugs: Overview and Issues for Congress,” October 28, 2011.

We invite you to help sustain Secrecy News and the work of the FAS Project on Government Secrecy by making a tax-deductible contribution to the Federation of American Scientists.

Last week, the Congressional Research Service issued a report about “The Arsenal Act,” a peculiar and little-known law dating back to 1854 that authorizes the Secretary of the Army to “abolish any United States arsenal that he considers unnecessary.” If you wanted to read that report you could purchase a copy for $29.95 from a commercial vendor.  Or you could write to your Congressman to request that a copy be sent to you.  Or you could simply read the report right now for free on the Federation of American Scientists web site.

We do not charge anyone for access to this or thousands of other valuable, hard-to-find government records that are highlighted in nearly every issue of Secrecy News.  The whole point of our work is to make such records more easily available.

But we do incur costs in gathering and publishing the records.  We also invest time and resources in probing the boundaries of the national security secrecy system and reporting our findings to the interested public.  We engage in advocacy to promote a real, measurable reduction in the scope of secrecy through the Fundamental Classification Guidance Review and other mechanisms.  And we assist reporters and researchers dealing with questions of access to government information.

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Earlier this week, we noted that it was increasingly unlikely that the budget for the National Intelligence Program (NIP) would be removed from concealment in the Defense Department budget and given its own budget line item, as the Director of National Intelligence and others had proposed.

Instead, the status quo is likely to persist, we wrote, because “Congress likes it that way.”  But this remark was too glib.  The language we cited from the House version of the Defense Appropriations Act that would prohibit NIP separation has not been adopted in the Senate.  Influential members of the Senate Intelligence Committee actually favor a separate NIP budget as a way to increase transparency and to provide the DNI with greater control of appropriated funds.  So Congress is not of one mind on this question, and it has not completed action on the prohibition proposed in the House.

We also mistakenly credited the DNI with “voluntarily” disclosing the amount of the FY2012 NIP budget request in February of this year.  But in fact, that disclosure was not voluntary.  It was mandated by Congress in the FY2010 Intelligence Authorization Act (section 364).

While disclosure of the budget request for the National Intelligence Program is required by law, the disclosure of the budget request for the Military Intelligence Program (MIP) is not specifically required.  Secrecy News asked the Pentagon to disclose it anyway.  Officials said a response to that request would be forthcoming “sometime around January 1, 2012.”

For the first time in more than a decade, the total U.S. intelligence budget declined in 2011, according to budget figures declassified and disclosed last week.

Although the National Intelligence Program (NIP) budget increased slightly from $53.1 in 2010 to $54.6 billion in 2011, the Military Intelligence Program (MIP) budget dropped from $27 billion to $24 billion.  The sum of both categories of intelligence spending thus declined from $80.1 billion in 2010 to $78.6 billion in 2011, signaling a reversal of the steady intelligence budget increases of the past decade.

Director of National Intelligence James Clapper said last month that he anticipated “double digit” cuts in the National Intelligence Program budget over the next ten years.

“It will be an actual cut in funds, not a cut to projected growth,” said a congressional staffer. “Put another way, budgets in the future years will be less than they are for FY12.”

Corrections added below

The budget for the National Intelligence Program will mostly remain hidden in the Department of Defense budget for the foreseeable future and will not be given a separate budget line item or a separate appropriation, despite the efforts of budget reformers and intelligence community leaders.

Director of National Intelligence James Clapper had advocated such a move for years, particularly since it would have enhanced the role of the DNI.

“I would support and I’ve also been working [on] actually taking the National Intelligence Program [NIP] out of the DoD budget,” he said at his July 2010 confirmation hearing.  Doing so would “serve to strengthen the DNI’s hand in managing the money in the intelligence community,” he explained.

But in a speech (pdf) last month, DNI Clapper indicated that the proposed move had been stymied.  “Ain’t gonna happen,” he said.

A stand-alone budget for the National Intelligence Program would have added clarity and integrity to the budget process.  Currently, most intelligence spending is concealed in the Department of Defense appropriations bill in opaque and misleading line items.  Much of the money is not under the effective control the Secretary of Defense.  Some of it, like the CIA budget, is not Defense Department spending at all.  The whole arrangement is a deliberate subterfuge that is a legacy of the Cold War.

But Congress likes it that way.  The House of Representatives passed language in the 2012 defense appropriations bill that would prohibit a change in the status quo. [To date, however, the Senate has not adopted this position.]

“None of the funds appropriated in this or any other Act may be used to plan, prepare for, or otherwise take any action to undertake or implement the separation of the National Intelligence Program budget from the Department of Defense budget,” the House bill said (HR 2219, sect. 8116).

The efforts by DNI Clapper to establish independent funding for the National Intelligence Program have already paid dividends in increased openness.  In 2011, the amount that was requested for the NIP for the following year was voluntarily disclosed for the first time ever.  Disclosure of the budget request, previously opposed by Intelligence Community leaders, was a precondition for a separate NIP budget. [Correction: Disclosure of the budget request was required by statute and was not “voluntary.”]

Now that a separate NIP budget is out of reach and there is no programmatic advantage to be gained from publishing the intelligence budget request, it remains to be seen whether or not the request for the FY2013 NIP budget will be voluntarily released by the DNI next year. [Same correction: disclosure is now required by statute.]

Annual disclosure of the total intelligence budget appropriation, which for decades was a matter of fierce contention, is now utterly routine.

A new report from the Congressional Research Service reviewed “The Intelligence Appropriations Process: Issues for Congress” (pdf), October 27, 2011.

A new U.S. Army publication (pdf) invites American soldiers to ponder the role of cultural factors in shaping perception and action.

Analyze this statement: ‘The English drive on the wrong side of the road.’

In some Islamic countries women wear burkas.  Who is advantaged and who is disadvantaged by this?

Why do you think major religious traditions tend to have a plain version and a more mystical version?

What do television commercials tell us about American culture?

This is not a purely theoretical exercise, but is intended to support the Army’s counterinsurgency role in Afghanistan and elsewhere.

“Soldiers must understand how vital culture is in accomplishing today’s missions,” the new publication says. “Military personnel who have a superficial or even distorted picture of a host culture make enemies for the United States.  Each Soldier must be a culturally literate ambassador, aware and observant of local cultural beliefs, values, behaviors and norms.”  See “Culture Cards: Afghanistan & Islamic Culture,” U.S. Army, September 2011.

 

The 2012 edition of the U.S. Army Weapon Systems handbook provides a concise description of dozens of Army weapon systems and programs.  In each case it presents system specifications and indicates the current status of procurement or development.  It identifies contractors by name and location as well as foreign military sales, where applicable.

“The systems listed in this book are not isolated, individual products. Rather, they are part of an integrated system-of-systems investment approach designed to make the Army of the future able to deal successfully with the challenges it will face,” the handbook says.

“Our goal is to develop and field a versatile and affordable mix of equipment that will enable Soldiers to succeed in full-spectrum operations today and tomorrow, ensuring that we maintain our decisive advantage over any enemy we face.”

For two weeks in October 1969, the Nixon Administration secretly placed U.S. nuclear forces on alert.  At the time, the move was considered so sensitive that not even the Chairman of the Joint Chiefs of Staff was briefed on its purpose.  Still today, no conclusive explanation for the potentially destabilizing alert can be found.  Even with full access to the classified record, State Department historians said in a new volume of the Foreign Relations of the United States (FRUS) series that they were unable to provide a definitive account of the event.

Previous historical scholarship has inferred from selected declassified documents that the alert was somehow intended to communicate a firm resolve to end the Vietnam War by whatever means necessary.  (See “Nixon’s Nuclear Ploy” by William Burr and Jeffrey Kimball, National Security Archive, December 23, 2002; and “The Madman Nuclear Alert” by Scott D. Sagan and Jeremi Suri, International Security, Spring 2003.)

But based on the classified record, that interpretation remains unproven and uncertain, according to the gripping new State Department FRUS volume on “National Security Policy” (pdf).

“The documentary record offers no definitive explanation as to why U.S. forces went on this alert, also known as the Joint Chiefs of Staff (JCS) Readiness Test,” the editors of the FRUS volume said (Document 59).

“There are two main after-the-fact explanations: first, that nuclear brinkmanship was designed to convince the Soviets that President Nixon was prepared to launch a nuclear attack against North Vietnam in order to convince Moscow to put pressure on Hanoi to negotiate an end to the war in Southeast Asia” along the lines that previous historians have suggested.

The second proposed explanation is “that the President ordered the alert as a signal to deter a possible Soviet nuclear strike against China during the escalating Sino-Soviet border dispute.”  Consistent with the second interpretation, the FRUS volume provides new documentation of intelligence reports indicating that Soviet leaders were considering a preemptive strike against Chinese nuclear facilities.

Astonishingly, even the most senior U.S. military leaders were kept in the dark by the White House about the nature of the alert– before, during and after the event.

“It is difficult to measure the success of this operation,” wrote JCS Chairman General Earle G. Wheeler to Secretary of Defense Melvin Laird on November 6, 1969, “since… the objectives of the test are unknown.”

“It seems prudent if maximum benefit is to be gained from an operation of this type that at least you and I and the senior commanders are informed of the objectives and goals,” General Wheeler suggested (Document 92).

In the end, the secret U.S. military alert — one of only a few such cases involving U.S. nuclear forces — had little discernable impact.  “There has been no reflection of acute concern by the Soviets…,” the CIA reported in an October 27, 1969 memorandum included in the FRUS volume (Document 89).  “There has been no reflection of the US military alert posture in Soviet or Chinese news media or diplomatic activity.”

Of the small White House group that directed the secret 1969 alert, perhaps only Henry Kissinger remains alive and active.  He did not mention the alert in his memoirs, the FRUS editors noted, except perhaps in an oblique statement that the United States “raised our profile somewhat to make clear that we were not indifferent” to Soviet threats against Chinese facilities.