[net-gold] Secrecy News -- 08/22/11
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 22 Aug 2011 11:52:36 -0400 (EDT)
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Date: Mon, 22 Aug 2011 10:12:11 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 08/22/11
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SECRECY NEWS
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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 79
August 22, 2011
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** SOME NEW WRINKLES IN NUCLEAR WEAPONS SECRECY
** STERLING DEFENSE ARGUES AGAINST SECRET EVIDENCE
** EUROPEAN UNION SECURITY POLICY, AND MORE FROM CRS
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SOME NEW WRINKLES IN NUCLEAR WEAPONS SECRECY
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A newly released intelligence guide to document classification markings
explains the meaning and proper use of control markings to designate
classified information. See "Authorized Classification and Control Markings
Register," CAPCO, Volume 4, Edition 2, May 31, 2011:
http://www.fas.org/sgp/othergov/intel/capco_reg.pdf
This material is very detailed, comprehensive and quite informative, with
only a few redacted passages pertaining to some code word usages.
But though it is only three months old, it is already out of date due to the
constant churning within the classification system that regularly generates
new marking requirements and cancels old, familiar ones. This has been
particularly true lately with respect to changes in markings for "Restricted
Data," or classified nuclear weapons information.
Thus, the intelligence guide to classification marking refers to the
so-called "Sigma" system for marking Restricted Data. Each Sigma level
refers to a particular aspect of nuclear weapons design. According to the
intelligence community guide, the Sigma system extends from Sigma 1 to Sigma
15 and also Sigma 20. But that is no longer accurate.
In a July 2011 order, the Department of Energy determined that Sigma levels
1 through 5 and 9 through 13 are now obsolete. So they have been
disestablished. Meanwhile, a new Sigma category, Sigma 18, has been created
to address "Control of Complete Designs" and to protect "past and present
U.S. nuclear weapons, nuclear devices and weapon designs." See "Control of
Nuclear Weapon Data," DoE Order 452.8, July 21, 2011:
http://www.fas.org/sgp/othergov/doe/o452-8.pdf
At this late date in the nuclear era, there are still other "innovations" in
nuclear technology and nuclear secrecy. The New York Times reported last
weekend on an apparent breakthrough in the use of lasers to enrich uranium.
This laser enrichment process, known as SILEX (Separation of Isotopes by
Laser Excitation), also poses new proliferation issues. See "Laser Advances
in Nuclear Fuel Stir Terror Fear" by William J. Broad, August 21.
http://www.nytimes.com/2011/08/21/science/earth/21laser.html
Though the Times story did not mention it, the SILEX process is also a
unique case in which information that was privately generated was
nevertheless classified by the government. As far as could be determined,
the decision to classify this non-governmental information under the Atomic
Energy Act is the first and only time that such authority has been
exercised. See this 2001 "Record of Decision to Classify Certain Elements
of the SILEX Process as Privately Generated Restricted Data."
http://www.fas.org/sgp/othergov/doe/silex.html
(See also "A Glimpse of the SILEX Uranium Enrichment Process," Secrecy News,
August 22, 2007.)
For its part, the Department of Defense issued a new Instruction last week
on "Disclosure of Atomic Information to Foreign Governments and Regional
Defense Organizations" (DoDI 5030.14, August 17, 2011).
http://www.fas.org/irp/doddir/dod/i5030_14.pdf
STERLING DEFENSE ARGUES AGAINST SECRET EVIDENCE
Prosecutors in the case of former CIA officer Jeffrey Sterling, who is
accused of leaking classified information, should not be permitted to
present their evidence at trial in modified or redacted form and should also
not be able to employ other extraordinary security measures, defense
attorneys argued in an August 19 pleading.
http://www.fas.org/sgp/jud/sterling/081911-oppose158.pdf
Specifically, the defense team said that prosecutors should not be allowed
to use the provisions of the Classified Information Procedures Act (CIPA) to
introduce unclassified substitutions for classified evidence that they wish
to present.
The purpose of CIPA, the defense said, is to allow the defendant to present
exculpatory classified evidence in an unclassified form while preventing
"graymail," i.e. the threat to disclose classified information as a tactic
for evading prosecution.
But CIPA does not entitle prosecutors to introduce their own classified
evidence in redacted form, the defense argued, particularly since "the
Government... cannot 'graymail' itself." Instead, the prosecution "must
either declassify information it wishes to use in its case-in-chief or
forego using that information."
"What CIPA does not provide is the ability of the Government to prosecute a
defendant using substitute or redacted evidence against him in its
case-in-chief," the defense said.
The Sterling defense also objected to the prosecutors' proposed use of the
"silent witness" rule, by which classified information is shared with the
jury but not disclosed in open court.
http://www.fas.org/sgp/jud/sterling/080911-motion150.pdf
The silent witness rule is fundamentally unfair, is not authorized by law,
is possibly unconstitutional, and should not be approved by the court, the
defense said. (The proposal to invoke the silent witness rule was first
reported by Josh Gerstein in Politico on August 10.)
"It will be impossible effectively to contest and challenge the Government's
evidence before a jury if the Court permits use of the silent witness rule,
which would impermissibly provide the stamp of secrecy and national security
importance to information that the Government has elected to disclose in a
criminal trial where those very issues are contested. The Court must
decline this invitation to conduct an unfair and constitutionally
impermissible trial," the defense said.
For similar reasons, the defense also objected to the proposed use of
security measures such as initials and screens to conceal the identities of
government witnesses.
"The Department of Justice, surely after consultations with the CIA,
approved this prosecution," the defense pleading said. "In doing so, it
should have expected an open and public trial that featured all of the
Constitutional protections afforded a defendant in the United States."
EUROPEAN UNION SECURITY POLICY, AND MORE FROM CRS
Recent reports from the Congressional Research Service that have not been
made readily available to the public include the following.
"The European Union: Foreign and Security Policy," August 15, 2011:
http://www.fas.org/sgp/crs/row/R41959.pdf
"Standard & Poor's Downgrade of U.S. Government Long-Term Debt," August 9,
2011:
http://www.fas.org/sgp/crs/misc/R41955.pdf
"The Obama Administration's Cybersecurity Proposal: Criminal Provisions,"
July 29, 2011:
http://www.fas.org/sgp/crs/misc/R41941.pdf
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_______________________________________________
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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/
To SUBSCRIBE to Secrecy News, go to:
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Secrecy News is archived at:
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Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html
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_______________________
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@xxxxxxx
voice: (202) 454-4691
twitter: @saftergood
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