Secrecy News -- 08/27/12
Steven Aftergood
saftergood at fas.org
Mon Aug 27 07:00:10 PDT 2012
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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 85
August 27, 2012
Secrecy News Blog: http://www.fas.org/blog/secrecy/
** GUIDANCE ON NUCLEAR TARGETING IS "TIGHTLY CONTROLLED"
** SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW
** PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, AND MORE FROM CRS
GUIDANCE ON NUCLEAR TARGETING IS "TIGHTLY CONTROLLED"
U.S. government guidance on the targeting of nuclear weapons is perhaps
the most tightly held of all national security secrets, and "fewer than
twenty" copies of the President's instructions on the subject are extant
within the entire Department of Defense.
Following a November 2011 hearing of the House Armed Services Committee,
Rep. Michael Turner (R-OH) asked "How many military and civilian personnel
in the executive branch have full or partial access to nuclear employment
and targeting guidance?"
In newly published responses to questions for the record, Under Secretary
of Defense James N. Miller said the answer was "a very small group of
personnel in the executive branch."
http://www.fas.org/irp/congress/2011_hr/nw-qfr.pdf
"Even within the Department of Defense (DOD), access to this sensitive
material is tightly controlled," Dr. Miller added. "Within the Department
of Defense, fewer than twenty copies of the President's guidance are
distributed in the Office of the Secretary of Defense, the Joint Staff, and
U.S. Strategic Command."
The nuclear weapons guidance issued by the Secretary of Defense and the
Chairman of the Joint Chiefs to implement the President's instructions is
somewhat more broadly disseminated.
"Fewer than 200 copies of the most recent amplifying guidance issued by
the Secretary of Defense were produced, and distribution was limited
primarily to Office of the Secretary of Defense, the Joint Staff, U.S.
Strategic Command, and other Combatant Commanders. The Chairman's guidance
is distributed more widely within DOD (fewer than 200 copies), as the
document assigns responsibilities to several defense agencies and the
intelligence community. Commander, U.S. Strategic Command must issue
guidance to his planners and forces in the field, so distribution is
somewhat wider because of that need."
What about congressional access? "How many personnel in the legislative
branch have full or partial access to each level of guidance?", Rep. Turner
asked.
Dr. Miller declined to answer that question directly.
"There is a long history of debate about providing the legislative branch
access to this material," he said. "As a result, instances of providing
access to a member of Congress and senior staff personnel have been quite
limited and under restrictive terms."
In fact, the history of debate over congressional access to nuclear
targeting information was never conclusively resolved, as far as is
publicly known. In 2000, then-Sen. Robert Kerrey criticized the Department
of Defense repeatedly for refusing to provide the information.
http://www.fas.org/sgp/news/2000/12/iaf122200.html
"As elected representatives of the people, and with a Constitutional role
in determining national security policy, Congress should have an
understanding of the principles underpinning our nuclear policy. Both the
guidance provided by the President and the details of the SIOP [nuclear
weapons targeting plan] are necessary for us to make informed national
security decisions," Sen. Kerrey said on the Senate floor on June 30, 2000.
http://www.fas.org/sgp/congress/2000/kerrey.html
Sen. Kerrey wrote to then-Secretary of Defense William Cohen seeking an
explanation of the Department's policy on congressional access to nuclear
targeting information.
http://www.fas.org/sgp/congress/2000/kerrey2.html
But no reply was ever received.
In the newly released questions for the record, which address a
multiplicity of nuclear policy issues, Rep. Turner also asked "How many
military personnel have full or partial access to STRATCOM's OPLAN 8010?",
referring to the U.S. Strategic Command nuclear war plan.
"Full access to all portions of OPLAN 8010 is limited to our most senior
leadership," replied Gen. C. Robert Kehler, STRATCOM Commander.
For background on OPLAN 8010, see "Obama and the Nuclear War Plan" by Hans
M. Kristensen, Federation of American Scientists, February 2010:
http://fas.org/programs/ssp/nukes/publications1/WarPlanIssueBrief2010.pdf
SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW
If the former Navy SEAL who co-authored a new book about killing of Osama
bin Laden signed a non-disclosure agreement for access to "sensitive
compartmented information" (i.e., classified intelligence information),
then he was obliged to submit his manuscript to the government for
prepublication review even if he believed that it contained no classified
information.
A sample SCI non-disclosure agreement that is used by the Department of
Defense is here:
http://www.fas.org/sgp/othergov/dd_1847_1.pdf
If the book did contain classified information, then the author could
conceivably be subject to criminal prosecution under the Espionage Act.
But even if it did not contain classified information, its publication
without prior review could be deemed a breach of contract, with the
proceeds subject to seizure by the government.
The government's authority to enforce a non-disclosure agreement in this
way was affirmed by a federal court most recently in the case of USA v.
Ishmael Jones. In that case, Jones (the pseudonym of a former CIA officer)
published his manuscript without completing the prepublication review
process.
Last week, Adm. William H. McRaven of U.S. Special Operations Command
condemned the disclosure of classified information by former special
operators, as well as other forms of activism that tended to politicize the
service.
"While as retired or former service members, they are well within their
rights to advocate for certain causes or write books about their
adventures, it is disappointing when these actions either try to represent
the broader S.O.F. community, or expose sensitive information that could
threaten the lives of their fellow warriors," McRaven wrote in an email to
all special operation personnel.
http://www.defense.gov/news/newsarticle.aspx?id=117635
"We will pursue every option available to hold members accountable,
including criminal prosecution where appropriate," he wrote, as reported by
Kimberly Dozier of the Associated Press.
"Today, U.S. Special Operations Forces are in 78 countries around the
world supporting U.S. policy objectives," Adm. McRaven told Congress last
March.
The SOCOM budget request for FY2013 is $10.4 billion. "The FY 2013 budget
includes 21 construction projects in nine states, one overseas, and one at
a classified location," Adm. McRaven said in the 2012 SOCOM posture
statement.
http://www.fas.org/irp/congress/2012_hr/030612mcraven.pdf
PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, AND MORE FROM CRS
New and updated reports from the Congressional Research Service that
Congress has not made available to the public include the following.
Presidential Claims of Executive Privilege: History, Law, Practice, and
Recent Developments, August 21, 2012:
http://www.fas.org/sgp/crs/secrecy/R42670.pdf
Congress's Contempt Power and the Enforcement of Congressional Subpoenas:
Law, History, Practice, and Procedure, updated August 17, 2012:
http://www.fas.org/sgp/crs/misc/RL34097.pdf
Iraq: Politics, Governance, and Human Rights, updated August 21, 2012:
http://www.fas.org/sgp/crs/mideast/RS21968.pdf
An Overview of the "Patent Trolls" Debate, August 20, 2012:
http://www.fas.org/sgp/crs/misc/R42668.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood at fas.org
voice: (202) 454-4691
twitter: @saftergood
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