Noteworthy new reports from the Congressional Research Service obtained by Secrecy News that have not previously been made available online include the following (all pdf).

“Deepwater Horizon Oil Spill: Selected Issues for Congress,” May 27, 2010.

“Deferred Examination of Patent Applications: Implications for Innovation Policy,” May 27, 2010.

“Post-Employment, ‘Revolving Door,’ Laws for Federal Personnel,” updated May 12, 2010.

“A New United Nations Entity for Women: Issues for Congress,” May 25, 2010.

“Democratic Reforms in Taiwan: Issues for Congress,” May 26, 2010.

“Detection of Nuclear Weapons and Materials: Science, Technologies, Observations,” updated June 4, 2010.

The United Nations Human Rights Council last week presented a new set of institutional and policy practices for intelligence agencies that it said would help to improve accountability and protection of human rights in intelligence policy.

The new “Compilation of good practices on legal and institutional frameworks and measures to ensure respect for human rights by intelligence agencies while countering terrorism” (pdf) discusses 35 principles and practices in four categories: legal mandate, oversight, compliance with human rights standards, and issues related to specific intelligence functions.  The compilation was prepared for the UN by Special Rapporteur Martin Scheinin with the assistance of the Geneva Centre for the Democratic Control of Armed Forces.

The UN Human Rights Council does not have (or claim to have) authority to dictate the intelligence policies of member nations.  Moreover, the proposed “good practices” do not distinguish between democracies and dictatorships, or among governments that have an independent judiciary and those that came to power through electoral fraud or military coup.  The practices also do not differentiate among domestic, foreign and military intelligence services, though each of these may be subject to different legal and policy frameworks.  “It is not the purpose of this compilation to promulgate a set of normative standards that should apply at all times and in all parts of the world,” the document states.

Indeed, “Very few States have included all of the practices outlined below in their legal and institutional frameworks for intelligence services and their oversight.  Some States will be able to identify themselves as following the majority of the 35 elements of good practice.  Other States may start by committing themselves to a small number of these elements….”

But Mr. Scheinin told the Council last week that he “hoped that States would use his compilation of good practices in an assessment of their own law and practice, and identify the areas of full adherence, of partial adherence and of non-adherence. Thereafter, they would hopefully determine the areas where they wished to adhere with the identified good practices in the future and set benchmarks for getting there.”  In other words, the compilation can serve as a template which citizens can use for comparing and evaluating national intelligence policies.

In many respects, the United States is among the nations with the best intelligence practices, with a relatively well-developed legal framework for intelligence activities and a mature oversight apparatus.  But in other respects, it falls short.

For example, the UN compilation’s Practice 9 requires that “Any individual who believes that her or his rights have been infringed by an intelligence service [should be] able to bring a complaint to a court or oversight institution…. Individuals affected by the illegal actions of an intelligence service [should] have recourse to an institution that can provide an effective remedy, including full reparation for the harm suffered.”

But in cases like those of Khaled el-Masri and Maher Arar — who appear to have been wrongly detained, “rendered” abroad, and tortured — no adjudication or remedy is available from the U.S. government since their complaints have been deflected by the use of the state secrets privilege.

More generally, intelligence oversight in the U.S. has failed to generate a consensual public record concerning the extraordinary intelligence activities of the post-9/11 era, leaving the field open to continuing allegations of abuse and violations of law.  Today, Physicians for Human Rights issued a report alleging that CIA medical personnel were complicit in unlawful human experimentation through their collaboration in monitoring the application of “enhanced” interrogation techniques.  The CIA denies the charge.

In another instance where U.S. practice falls short of the ideal, the UN compilation’s Practice 3 directs that “The powers and competences of intelligence services [should be] clearly and exhaustively defined in national law.”

But the terms of current U.S. intelligence law are not entirely clear or exhaustive.  We don’t know, for example, the current nature or scope of domestic surveillance activities or what exactly was permitted under the most recently enacted amendments to the Foreign Intelligence Surveillance Act.

That absence of public clarity is deliberate, said NSA Director Gen. Keith B. Alexander, the new Commander of US Cyber Command, in a speech (pdf) at the Center for Strategic and International Studies last week.

In response to a question from Kate Martin of the Center for National Security Studies about the feasibility of increasing public disclosure of cyber security policy, Gen. Alexander said that that was not his preferred approach.  Instead, he promised, government officials would be fully candid with each other, while continuing to withhold information from the public.  In other words, he said, what Americans can expect is “transparency at the classified level.”

The U.S. Army has arrested Spc. Bradley Manning of Potomac, Maryland for unauthorized disclosure of classified information.  Among other things, he is suspected of having provided the video of a 2007 Apache helicopter strike in Baghdad that killed several civilians to the Wikileaks web site, which published it online in April of this year.  The story was reported last night by Wired’s Threat Level blog.  See “U.S. Intelligence Analyst Arrested in Wikileaks Video Probe” by Kevin Poulsen and Kim Zetter.

Spc. Manning is currently being held in pre-trial confinement in Kuwait, according to an Army statement obtained by NPR.

His arrest is the third known apprehension of a suspected leaker during the Obama Administration, after Shamai Leibowitz and Thomas A. Drake, and seems to reflect an increasingly aggressive response to unauthorized disclosures of classified information.

“German security authorities reported a substantial increase in crime and attacks on police in 2009 related to left-wing political groups and individuals,” said a new report (pdf) from the DNI Open Source Center.  “According to Germany’s Interior Ministry, more extremist crimes and acts of violence occurred in 2009 than in any year since 2001. The ministry reported that in 2009, left-wing extremist crimes increased by almost 40% to 9,375,” the report said.

“The Berlin intelligence service chief called his city the ‘German stronghold of left-wing extremism,’ noting 2,200 resident radical individuals, 950 of whom are ‘autonomous’ leftist anarchists. According to the police, the number of leftist crimes in Berlin doubled to 1,300 in 2009…. This increase in left-wing crime represents an additional concern alongside Germany’s perceived problems with right-wing extremist and immigrant crime….Federal and local government officials have initiated measures to combat left-wing extremism,” the report said.

A copy of the unclassified report, marked For Official Use Only,” was obtained by Secrecy News.  See “German Left-Wing Crime Increase Adds to Public Security Concerns,” Open Source Center, April 27, 2010.

In a move that may help to discourage habitual secrecy in military-funded research, the Department of Defense last week reaffirmed a Reagan-era policy that the products of fundamental scientific research should normally be unrestricted. However, the policy also said that if national security required imposing controls on such research, then formal classification was the only permissible means of doing so.

“The Department of Defense fully supports free scientific exchanges and dissemination of research results to the maximum extent possible,” wrote Under Secretary of Defense Ashton B. Carter in a May 24, 2010 memo (pdf) to the military service secretaries, first reported by Inside the Pentagon.

“I have determined that additional clarifying guidance is required to ensure the DoD will not restrict disclosure of the results of fundamental research… unless such research efforts are classified for reasons of national security,” he wrote.  It is not evident why such “additional clarifying guidance” was deemed necessary or what prompted the memo last week.

The guidance closely follows and reinforces the policy that was first enunciated in President Reagan’s National Security Decision Directive 189, and then elaborated in a 2008 DoD memorandum, which is nearly identical to the latest Carter memo.  Both documents were included as attachments to the new memo.

“NSDD 189 makes clear that the products of fundamental research are to remain unrestricted to the maximum extent possible,” Under Secretary Carter noted.  “When control is necessary for national security reasons, classification is the only appropriate mechanism.  The DoD will place no other restrictions on the conduct or reporting of unclassified fundamental research, except as otherwise required by applicable federal statutes, regulations, or executive orders.”

Moreover, he ordered, DoD program managers should actively avoid getting their research entangled in export controls or other potential restrictions on public disclosure.  “Unclassified contracted fundamental research awards should not be structured, managed or executed in such a manner that they become subject to controls under U.S. statutes and regulations, including U.S. export control laws and regulations,” Dr. Carter wrote.

“The performance of contracted fundamental research also should not be managed in a way that it becomes subject to restrictions on the involvement of foreign researchers or publication restrictions,” he added, echoing similar language from a 2008 policy memo.

In 1992, the Department of Energy performed what may have been the most thoughtful and self-critical assessment of classification policy that any government agency has ever carried out.  It is now available online.

“This study represents the first fundamental review of classification policy for nuclear weapons and nuclear weapon-related information since the Atomic Energy Act became law [in 1946],” wrote George L. McFadden, then-director of the DOE Office of Security Affairs, in a transmittal letter (pdf).  It laid the foundation for the subsequent revision of specific classification practices in the 1995 Fundamental Classification Policy Review and other reforms.

The study asked basic questions — What is the purpose of classification (specifically, of nuclear weapons information)?  What is wrong with the status quo?  How can it be improved? — and then it considered various answers to these questions.  Many of the questions, and a few of the answers, are still valid today.  And the study as a whole remains impressive as a model for taking a “fresh look” at classification activity, especially at a time when the National Security Advisor is gathering recommendations for “a more fundamental transformation of the security classification system.”

The 1992 DOE study predated the world wide web, and as far as I know it has not previously been published online.  A copy is now posted on the Federation of American Scientists web site.  See “Classification Policy Study,” U.S. Department of Energy, July 4, 1992.

The DNI Open Source Center recently prepared a pictorial profile of members of the Cabinet of the Hashemite Kingdom of Jordan who were appointed in December 2009 by King Abdallah II. (The bios of the Cabinet members are derived from reporting in the Jordan Times.) A copy was obtained by Secrecy News. See “Jordanian Cabinet” (pdf), Open Source Center, March 24, 2010.

corrected below

The development of the 2004 intelligence reform legislation that created the Director of National Intelligence and attempted to modernize and integrate the U.S. intelligence community was examined in detail last year in an unreleased report (large pdf) from the Office of the DNI.

The 2004 Intelligence Reform and Terrorism Prevention Act was supposed to “address institutional obstacles that had complicated the IC’s struggle to adapt to new technologies and a changing national security environment. The new act would redraw boundaries between foreign and domestic intelligence, set new rules for intelligence and law enforcement, enhance the interplay between civilian and military intelligence, correct the shortfall in information sharing, and meet the needs of traditional and emergent intelligence functions.”

But five years later, many of those original obstacles remain in place.

“The IC continues its struggle to keep up with technological innovations in collection. Other challenges include transforming analysis, anticipating future threats, increasing critical language capabilities, and improving hiring and security clearance processing.”

The report itself ironically exemplifies at least two of the enduring defects afflicting U.S. intelligence, namely pointless secrecy and a surprising backwardness in communications and information sharing.

For unknown reasons, the unclassified report has not been publicly released and made available online by ODNI.  [This is not correct — see below.] (It was however footnoted in an article by Patrick C. Neary in the latest issue of the CIA journal Studies in Intelligence.)  Limiting distribution in this way tends to diminish whatever value and utility the document might have.

Moreover, the report itself is so extravagantly overproduced that it requires a gargantuan 18 Megabytes to present a mere 25 pages of text.  (A word-searchable version of the document is 25 Megabytes.)  In such an unwieldy format, the report is the opposite of user-friendly.  It is unlikely to be emailed, downloaded— or read.

A copy was obtained by Secrecy News.  See “Reforming Intelligence: the Passage of the Intelligence Reform and Terrorism Prevention Act,” Laurie West Van Hook, National Intelligence University, Office of the Director of National Intelligence, February 2009.

Correction: Contrary to what I wrote above, the report was published last year on the ODNI website here (pdf).

The House of Representatives last week approved an amendment to the 2010 Defense Authorization Act that would require the Director of National Intelligence to cooperate with the Government Accountability Office in the performance of audits and investigations that are requested by the congressional intelligence committees.

The House voted 218-210 in favor of the measure, which was sponsored by Rep. Anna Eshoo and several colleagues.

Rep. Mac Thornberry (R-TX) spoke in opposition to the amendment, which he said would risk a veto of the defense bill by the Obama White House, and could undermine the Director of National Intelligence.  Rep. Edolphus Towns (D-NY) spoke in favor of the amendment, but he expressed concern that it permitted only the intelligence committees to task the GAO to perform oversight of an intelligence program or activity.  He said that any committee with relevant jurisdiction should be able to do the same.

The May 27 floor debate and vote on the Eshoo amendment may be found here.

A 2008 congressional hearing chaired by Senator Akaka on the potential role of the GAO in intelligence oversight is here.

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Terrorism, Miranda, and Related Matters,” May 24, 2010.

“Defense: FY2011 Authorization and Appropriations,” May 25, 2010.

“Quadrennial Defense Review 2010: Overview and Implications for National Security Planning,” May 17, 2010.

“North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation,” May 26, 2010.

“Ballistic Missile Defense and Offensive Arms Reductions: A Review of the Historical Record,” May 25, 2010.

Updated below, to reflect passage of the amendment

Defying a previous veto threat from the White House, the House of Representatives will consider an amendment to bolster intelligence oversight by requiring intelligence agencies to cooperate with the Government Accountability Office when it performs audits that are requested by a congressional committee with jurisdiction over intelligence.

In general, the amendment (pdf) states, “the Director of National Intelligence shall ensure that personnel of the Government Accountability Office designated by the Comptroller General are provided with access to all information in the possession of an element of the intelligence community that the Comptroller General determines is necessary for such personnel to conduct an analysis, evaluation, or investigation of a program or activity of an element of the intelligence community that is requested by one of the congressional intelligence committees.”

The amendment to the FY2011 Defense Authorization Act (HR 5136) was sponsored by Rep. Anna Eshoo (D-CA) and several colleagues.

When a similar amendment was included in the FY2010 Intelligence Authorization Act, which is still pending, it prompted a veto threat from the Obama White House.  But the White House opposition was based on an erroneous interpretation of the law, the Acting Comptroller of the GAO told Congress.

Somewhat surprisingly, given the likelihood of a renewed veto threat, the House Democratic leadership ruled that the Eshoo amendment was “in order,” and it will therefore be considered on the House floor, perhaps today or tomorrow.

Back when he was a Congressman in 1987, CIA Director Leon Panetta introduced a bill called the “CIA Accountability Act” (pdf) that would have reinforced GAO oversight over the Central Intelligence Agency.

Update: The amendment passed the House on May 27 by a vote of 218-210. See this news release from Rep. Eshoo: House Passes Legislation to Increase Oversight of Intelligence Community.

The system of national borders that is intended to exclude unauthorized persons can be conceptualized as a “fortress” with rigid barriers forming a secure perimeter, or as a “complex organism” with flexible layered defenses and interactions with the external environment. The application of these models to the United States, along with an evaluation of their possible effectiveness, is presented in a new report from the Congressional Research Service.  See “People Crossing Borders: An Analysis of U.S. Border Protection Policies,” May 13, 2010.

Other new CRS products that have not been made readily available to the public include the following (both pdf).

“Potential Stafford Act Declarations for the Gulf Coast Oil Spill: Issues for Congress,” May 13, 2010.

“FY2010 Supplemental for Wars, Disaster Assistance, Haiti Relief, and Court Cases,” May 12, 2010.