SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 23
March 10, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

LEAKS A "SERIOUS PROBLEM" FOR DEFENSE INTELLIGENCE

Unauthorized disclosures of classified information are among "the major challenges" facing defense intelligence, Acting Under Secretary of Defense for Intelligence Michael Vickers told Congress last month. Mr. Vickers is awaiting Senate confirmation to be the new USD(I), a post that was last held by James R. Clapper, who is now the Director of National Intelligence. The Under Secretary is "dual-hatted" as Director of Defense Intelligence.

"One of the most serious problems currently confronting the USD(I) is the unauthorized disclosure of classified information. The spate of unauthorized disclosures of very sensitive information places our forces, our military operations, and our foreign relations at risk. It threatens to undermine senior leaders' confidence in the confidentiality of their deliberations, and the confidence our foreign partners have that classified information they share with us will be protected," Mr. Vickers wrote in response to advance questions for his February 15, 2011 confirmation hearing before the Senate Armed Services Committee.

With respect to WikiLeaks in particular, Mr. Vickers told Senator McCain at his confirmation hearing that by publishing names of Afghans who had cooperated with the U.S. military, WikiLeaks had put their "lives in danger."

"Fortunately," he added, "we are able to attract the intelligence assets that we require to serve our policymakers and warriors. But the damage should not be understated... and the Department has learned many lessons about how to prevent this from ever happening again."

Among numerous other intelligence policy topics, Mr. Vickers addressed the possible breakout of the National Intelligence Program (NIP) budget from its current concealment in the larger defense budget, a step that is favored by public interest advocates who believe it would improve the integrity of the budgeting process.

"The proposal to separate the NIP portion of the Defense budget was... intended... to provide greater visibility and oversight of NIP resources, as well as improve NIP financial management practices," he said. "ODNI is leading a collaborative study effort to determine the feasibility of the conceptual proposal, with DoD stakeholders participating. The study team is still assessing possible approaches and implications. No final decisions have been made on removing the NIP from the DoD budget."

Mr. Vickers was asked "Under what circumstances, if any do you think intelligence officers and analysts should be able to testify to Congress on their professional conclusions regarding a substantive intelligence issue even if those views conflict with administration positions?"

He responded: "If Congress requires testimony on a substantive intelligence issue, it should be provided, whether or not it conflicts with an administration position."

Another question posed by the Senate Armed Services Committee revealed that "the Department may have failed to report certain cyber activities in the Quarterly Report [to Congress] that should have been included, since they would legitimately fit the accepted definition of clandestine military activities [that are to be disclosed to Congress]." (Previously noted by the Associated Press, EmptyWheel.)

Mr. Vickers said that if confirmed, he would commit to full reporting on DoD intelligence-related activities, "to include cyber activities."

Senator Joe Manchin (D-WV) asked Mr. Vickers "What's the strength of al Qaeda in Afghanistan?... 10,000? 100,000?"

"No, sir," Mr. Vickers replied. The number of al Qaeda personnel in Afghanistan "would be under 50 or so, 50 to 75, and that on a part-time basis." However, he added, "The Taliban are still aligned with al Qaeda.... Even though Afghanistan is not principally where al Qaeda is, it could become a future safe haven if we were to repeat the errors we made after the Cold War."

LAW ENFORCEMENT USE OF GPS DEVICES, AND MORE FROM CRS

When law enforcement agencies use a Global Positioning System device to track the motor vehicle of a potential suspect, is that a "search" that is subject to constitutional protections under the Fourth Amendment? Or is it comparable to visual inspection of public information that enjoys no such protection?

The Supreme Court has not ruled on the subject, and lower courts have issued a range of opinions in different cases, according to a new report from the Congressional Research Service that carefully delineated the issues.

"Depending on how one reads the courts' decisions, one could conclude that there is a split in the courts regarding whether law enforcement must first obtain a warrant before using a GPS device. Conversely, one could also conclude that the courts' decisions are reconcilable and that the outcomes of the cases are fact-sensitive."

A copy of the CRS report was obtained by Secrecy News. See "Law Enforcement Use of GPS Devices to Monitor Motor Vehicles: Fourth Amendment Considerations," February 28, 2011:

Some other new or newly updated CRS products include these:

"Mandatory Vaccinations: Precedent and Current Laws," February 24, 2011:

"The U.S. Postal Service's Financial Condition: Overview and Issues for Congress," February 24, 2011:

"War Powers Resolution: Presidential Compliance," February 3, 2011:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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