North Korean officials confirmed on February 24 that their country is making preparations to launch a communications satellite, a move that would also constitute a new test of North Korean missile capabilities.

The DNI Open Source Center recently reviewed indications in the North Korean press (pdf) that preparations for a new missile test might be underway.  The OSC analysis (which pre-dated the official government confirmation of the test plans) also ventured an interpretation of the meaning of such a test.

“Almost certainly aware that a launch would be seen by the international community as provocative, Pyongyang appears to be deliberately raising the stakes, possibly the result of a calculus that envisions making headway in bilateral negotiations if it could present itself as an equal partner,” the OSC analysis said.

The OSC document has not been approved for public release, but a copy was obtained by Secrecy News.  See “Analysis: North Korean Media Campaign Signals Possible Near-Term Launch,” February 11, 2009.

Hundreds of times in the last 210 years, the United States has deployed its military forces in conflicts abroad, although the U.S. has only formally declared war on eleven occasions.

A newly updated tabulation of those military deployments (pdf) — which do not include covert actions, disaster relief, or military training exercises — has recently been prepared by the Congressional Research Service.  A copy of the updated report was obtained by Secrecy News.

See “Instances of Use of United States Armed Forces Abroad, 1798-2008,” February 2, 2009.

Smugglers continue to construct tunnels beneath U.S. borders to transport drugs, illegal aliens and other contraband, according to an internal briefing prepared by a U.S. Northern Command Task Force.

Dozens of tunnels have been found in recent years, including some of remarkable sophistication, but it is likely that others remain undetected.  Overall, between 1990 and November 2008, 93 cross-border tunnels were discovered, a Task Force briefing slide stated (pdf).  Thirty-five of those were in California, fifty-seven in Arizona, and one in Washington State.

Some of the tunnels are primitive, “hand dug” affairs.  Others are the product of surprisingly ambitious and complex engineering projects.  In one extraordinary case in 2006 (pdf), a tunnel was discovered near Otay Mesa in California that began with a 90-foot deep vertical shaft on the Mexican side that gradually ascended to an exit point in California more than half a mile north.  Seven feet in height, electrical power and ventilation were provided throughout the tunnel.  “This tunnel was the longest yet found under the U.S. border,” the new briefing indicated.

The Task Force briefing, which has not been approved for public release, was inadvertently posted on the Internet by U.S. Northern Command before being withdrawn last week.  A summary slide from the briefing on “Tunnels Since 1990” is here.

A descriptive tabulation of tunnels that were discovered between 2005 and early 2008 (based on data from the Department of Homeland Security) is available here.

At least six new tunnels were discovered in the first quarter of FY 2009, the Department of Homeland Security reported last December.

“The proliferation of tunnels dug underneath the border” may be “another unintended consequence of the border fencing” that has been erected along portions of the U.S.-Mexico border since 1990, a Congressional Research Service report (pdf) suggested last year.

Last week InsideDefense.com reported that the same Northern Command Task Force briefing was critical of Canadian immigration policies, which it said were too hospitable to potential terrorists.  See “DOD Officials See Terrorist Threat to America Brewing in Canada” by Sebastian Sprenger, March 20.

A detailed and rather opinionated assessment of French media outlets was prepared last year by the Open Source Center (OSC) of the Office of the Director of National Intelligence.

“Many of the estimated 37,000 French journalists see themselves more as intellectuals than as reporters. Instead of merely reporting events, they often try to analyze developments and influence readers with their own biases. At the same time, many political or economic journalists are educated at the same elite schools as the politicians they cover…. As a consequence, many reporters do not necessarily regard their primary role as being that of a watchdog or a counterweight to the political and economic powers in place.”

See “France — Media Guide 2008” (pdf), Open Source Center, 16 July 2008.

Another OSC document last year provided a survey of think tanks in Germany.

“German policy research institutes influence decisionmaking of the federal and state governments, and their work is becoming more visible in the German media. Many receive government funding, and most maintain close ties with universities. German think tanks include major foreign policy institutes, peace research organizations, economic research institutes, party foundations, and non-traditional think tanks.”

See “German Think Tank Guide” (pdf), Open Source Center, 05 March 2008.

Like most other Open Source Center analyses, these reports have not been approved for public release.  Copies were obtained by Secrecy News.

A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.

Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government.  They even suggested that he could be liable to a year in jail himself if he did testify.  To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability.  (“To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena,” Secrecy News, September 2, 2008).  The court has now done so.

In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.

The ruling’s consequences for the AIPAC case are likely to be momentous, because government secrecy policy has become a central focus of the proceeding and because Mr. Leonard is the strongest witness on that subject on either side.

More than almost any other litigation in memory, the AIPAC case has placed the secrecy system itself on trial.  In Freedom of Information Act lawsuits and other legal disputes, courts routinely defer to executive branch officials on matters of classification.  If an agency head says that certain information is classified, courts will almost never overturn such a determination, no matter how dubious or illogical it may appear to a third party.

But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.”  Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!

The dispute over whether or not the classified information that was obtained by defendants Steven J. Rosen and Keith Weissman qualifies for protection under the Espionage Act will be “a major battleground at trial,” Judge Ellis observed, and it will be addressed at trial “largely through the testimony of competing experts.”

While the prosecutors naturally have their own classification experts, including former CIA Information Review Officer William McNair, none of those experts have Mr. Leonard’s breadth of experience and none of them reported to the President of the United States on classification matters as he did.

Judge Ellis wrote with perhaps a hint of admiration that the defense “understandably characteriz[es] Leonard’s experience and expertise as ‘unsurpassed’.”

As noted in the new opinion, Mr. Leonard will testify for the defense on the “pervasive practice of over-classification of information,” “the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists),” whether the classified information in this case qualifies for protection under the Espionage Act, and “whether… the defendants reasonably could have believed that their conduct was lawful.”

In other words, the prosecution probably just lost this case.

The new memorandum opinion has not been posted on the court web site for some reason, but a copy was obtained by Secrecy News.  Other significant AIPAC case files may be found here.

A nominal trial date has been set for April 21, 2009 but that date is likely to slip as a pre-trial appeal by the prosecution remains pending at the Court of Appeals. (Update: The trial has been rescheduled for June 2, 2009.)

The Open Source Center (OSC) of the Office of the Director of National Intelligence consistently generates a wealth of informative analytic and bibliographic products.  But for reasons that are hard to understand, such materials are generally withheld from public disclosure even when they are unclassified and not subject to copyright.

The following OSC publications (both pdf), which have not been approved for public release, were obtained by Secrecy News.

“Guide to Major Daily Turkish Newspapers,” OSC Media Aid, 7 October 2008.

“Poland — Think Tank Guide,” OSC Media Aid, 18 July 2008.

The Open Source Center (OSC) of the Office of the Director of National Intelligence recently ranked the individuals whom it considers to be the ten most influential political commentators in the British press and profiled them in an OSC publication (pdf).

These commentators — from the BBC, Sky News, the Guardian, and elsewhere — are “listened to and read by cabinet ministers, business leaders, and fellow journalists. Many of them have close links to senior politicians and have been responsible for breaking stories that set the political agenda,” the OSC document said.

The OSC publication, which has not been approved for public release, is marked “for official use only.”  Furthermore, its “authorized use is for national security purposes of the United States Government only.”  What the relevant U.S. Government national security purposes of such material might be was not specified.

A copy of the document was obtained by Secrecy News.  See “United Kingdom — Profiles of Influential Political Commentators,” OSC Media Aid, October 22, 2008.

The shifting legal framework governing the interrogation of detainees held by the U.S. Government was examined in several newly updated reports from the Congressional Research Service that have not previously been made readily available to the public (all pdf).

“Interrogation of Detainees: Requirements of the Detainee Treatment Act,” updated January 23, 2009.

“U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques,” updated January 26, 2009.

“The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens,” updated January 21, 2009.

“The War Crimes Act: Current Issues,” updated January 22, 2009.

“Renditions: Constraints Imposed by Laws on Torture,” updated January 22, 2009.

“Despite President Obama’s vow to open government more than ever, the Justice Department is defending Bush administration decisions to keep secret many documents about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists,” Michael J. Sniffen reported for the Associated Press.  See “Despite Obama Pledge, Justice Defends Bush Secrets,” February 16, 2009.

David Sobel of the Electronic Frontier Foundation described several actions taken by his organization to test and challenge the Obama Administration’s new disclosure policies.  See “EFF to Obama Administration: Time to Make Open Government a Reality,” February 12, 2009.

Excessive classification continues to generate intense frustration within the government and to foster suspicion and hostility on the part of allies, according to Lt. Gen. (ret.) John Sattler, the former director of strategic plans for the Joint Chiefs of Staff.  His remarks were reported in “Sattler: Less Classification, More Communication with Coalition” by Rebekah Gordon, Inside the Navy, February 16, 2009.

In a recent news story about the public availability of Congressional Research Service reports (“Thousands of Congressional Reports Now Available Online” by Brian Krebs, Washingtonpost.com, February 11), I was accurately quoted saying: “While 90 percent of the [CRS] reports are probably mediocre, at their best they are very good.”

I wish I had not said that 90% of CRS reports are probably mediocre.  It was disrespectful and condescending.  Besides, I have not read anywhere close to 90% of CRS reports and so I am not in a position to make such a judgment.  In other words, at least 50% of my statement was wrong.  I apologize for that.

I think my intent was to express skepticism about the utility of publishing another archive of CRS reports dating back a decade or more, as Wikileaks.org has recently done, since many of those reports address once-current policy issues that have been overtaken by events.  Such reports generally do not retain their original value over time.

I think I also meant to indicate that even when they are brand new, a large fraction of CRS reports are introductory in character.  Their purpose is primarily to organize and synthesize information that is already in the public domain, not to generate new insights or to provide original analysis or to advance a preferred policy.  But that doesn’t make them mediocre.  Sometimes it makes them especially useful.

Though I know better, I further implied that CRS itself is responsible for its policy of not permitting direct public access to its reports.  This is a tamer version of the recent Wikileaks assertion that CRS deliberately opposes public access so as to enable it to clandestinely influence Congress.  (“Free from meaningful public oversight of its work, the CRS… is able to influence Congressional outcomes, even when its reports contain errors,” according to Wikileaks. “Public oversight would reduce its ability to exercise that influence without criticism.”)  But that does not make sense, both because CRS does not advocate particular policy outcomes and because the majority of CRS reports are already in the public domain and have been available online for years.  It is Congress that prevents CRS from making its reports directly available to the public.  When Congress changes its policy, CRS will undoubtedly comply.

Perhaps the most important work that CRS performs does not find its way into the finished reports for Congress at all.  That is the day to day support that CRS analysts provide to congressional staff, some of whom are young and inexperienced, and many of whom may be overwhelmed by the complexity of the issues they face.  If Congress is ever to achieve its potential as a thoughtful, deliberative and co-equal branch of government, it will need all the help it can get, including the expert assistance of CRS.

“There is no known instance in which classified information was leaked or compromised by Government Accountability Office (GAO) employees,” I wrote on February 9 (“Senate Bill Revisits GAO Oversight of Intelligence”).  But that may not be true, according to one former GAO analyst.

“Sadly, your assertion of GAO’s record of no loss or compromise of classified information is probably not correct,” the former analyst told me.  “There was a German-born staff member in the old Programs Evaluation Division in the 1970s and 1980s who turned out to have been a Stasi plant.”

“I don’t remember the gentleman’s name.  I don’t think it was ever proved beyond a reasonable doubt that he had committed espionage, but I do recall that he was allowed to quietly retire on essentially no notice.  I also recall that GAO went through a really thorough internal review thereafter to assess the damage.”

“I’m sorry I don’t remember my former colleague’s name, but I do recall that there was a great deal of handwringing on this one.”

If there was a compromise of classified information at GAO in this case, however, it was the exception that proved the rule, said the former analyst (who asked that his name be withheld).

“I will assert… that GAO was among the most cautious and careful of government agencies in which I have either worked or observed in the manner in which it handles classified information.”

“One of the most frustrating problems for Executive Branch agencies is that GAO consistently wants the original classification guidance/authorities for classified materials that end up in its possession.  This ‘auditor’s obsession’ with the ‘complete’ file unfortunately uncovers the fact that much classified material is incorrectly marked or is classified according to whim and whimsy, not a bona fide classification guide.”

“And therein lies the problem,” he said.

On February 11, a bill was introduced in the House of Representatives by Rep. Bennie Thompson and several colleagues that would “reaffirm and clarify the authority of [the GAO] to audit and evaluate the programs, activities, and financial transactions of the intelligence community.”  The new bill, HR 1008, is a companion to Senator Daniel Akaka’s Intelligence Community Audit Act, S.385, that was introduced in the Senate on February 5.

U.S. Marine Corps personnel who are responsible for protecting classified information should consult a variety of sources including Secrecy News in order to maintain their professional awareness, a new Marine Corps newsletter advised (pdf).

To begin with, “you should read every security-related regulation/article you can get your hands on,” including the executive order on classification, the Information Security Oversight Office implementing directive, and so forth.

Then the newsletter recommended “exposing yourself to opposing views over the proper protection of CMI [classified military information],” a category that it said includes the views of Secrecy News and the National Security Archive.

See “Security Standard,” the official newsletter of the MARFORPAC [U.S. Marine Corps Forces Pacific] Command Security Branch, January 2009, page 1.