SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2018, Issue No. 40
June 20, 2018

Secrecy News Blog: https://fas.org/blogs/secrecy/

SUPERIORITY IN CYBERSPACE WILL REMAIN ELUSIVE

Military planners should not anticipate that the United States will ever dominate cyberspace, the Joint Chiefs of Staff said in a new doctrinal publication. The kind of supremacy that might be achievable in other domains is not a realistic option in cyber operations.

"Permanent global cyberspace superiority is not possible due to the complexity of cyberspace," the DoD publication said.

In fact, "Even local superiority may be impractical due to the way IT [information technology] is implemented; the fact US and other national governments do not directly control large, privately owned portions of cyberspace; the broad array of state and non-state actors; the low cost of entry; and the rapid and unpredictable proliferation of technology."

Nevertheless, the military has to make do under all circumstances. "Commanders should be prepared to conduct operations under degraded conditions in cyberspace."

This sober assessment appeared in a new edition of Joint Publication 3-12, Cyberspace Operations, dated June 8, 2018. (The 100-page document updates and replaces a 70-page version from 2013.)

The updated DoD doctrine presents a cyber concept of operations, describes the organization of cyber forces, outlines areas of responsibility, and defines limits on military action in cyberspace, including legal limits.

"DOD conducts CO [cyberspace operations] consistent with US domestic law, applicable international law, and relevant USG and DOD policies." So though it may be cumbersome, "It is essential commanders, planners, and operators consult with legal counsel during planning and execution of CO."

The new cyber doctrine reiterates the importance and the difficulty of properly attributing cyber attacks against the US to their source.

"The ability to hide the sponsor and/or the threat behind a particular malicious effect in cyberspace makes it difficult to determine how, when, and where to respond," the document said. "The design of the Internet lends itself to anonymity and, combined with applications intended to hide the identity of users, attribution will continue to be a challenge for the foreseeable future."

The changing role of "information" in warfare was addressed in a predecisional draft "Joint Concept for Operating in the Information Environment" (Joint Chiefs of Staff, December 2017).

"Integrating physical and informational power across geographic boundaries and in multiple domains could lead to campaigns and operations with enormous complexity," the document warns. "The fog and friction of war punishes unnecessary complexity."

Another concern is that a "focus on informational power could be misread by Congress and other resource allocators to suggest there is little need for a well-equipped and technologically-advanced Joint Force capable of traditional power projection and decisive action."

SECRECY ABOUT SECRECY: THE STATE SECRETS PRIVILEGE

The Justice Department has not reported to Congress on the government's use of the state secrets privilege since 2011, the Department acknowledged this week, contrary to a policy promising regular reporting on the subject.

In a 2009 statement of policy and procedures concerning the state secrets privilege, then-Attorney General Eric Holder said that "The Department will provide periodic reports to appropriate oversight committees of Congress with respect to all cases in which the Department invokes the privilege on behalf of departments or agencies in litigation, explaining the basis for invoking the privilege."

In April 2011, the first such report was produced. It was one of several steps that were "intended to ensure greater accountability and reliability in the invocation of the privilege. They were developed in the wake of public criticism concerning the propriety of the Government's use of the state secrets privilege."

But the first periodic report on the state secrets privilege has turned out to be the last.

In 2014, John Carlin of the Department's National Security Division affirmed the policy during his confirmation. "I understand that the Department's policy remains to provide periodic reports to appropriate oversight committees of Congress regarding invocations of the State Secrets Privilege in litigation, and the Department provided its initial report to Congress on April 29, 2011," he told the Senate Intelligence Committee. "I believe that the Department plans to submit another report in the near future."

But no such report was ever submitted. "No records responsive to your request were located," the Justice Department stated this week in response to a FOIA request for any subsequent reports.

While Congress could request and require such a report at any time, it has not done so. And because the 2009 Holder policy on state secrets was "voluntarily" adopted by the Justice Department in response to public controversy, there was nothing to stop the policy from being unilaterally abandoned.

LAWS ON ALIENS AT THE BORDER, AND MORE FROM CRS

"The situation at the border and U.S. immigration authorities' response to it has prompted significant attention and, in some cases, confusion regarding the governing laws and policies," the Congressional Research Service said with some understatement in a new brief.

The CRS document reviews the laws on admission and exclusion of aliens at the U.S. border, including detention, asylum, and treatment of unaccompanied children. See An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border, CRS Legal Sidebar, June 15, 2018:

Other new and updated publications from the Congressional Research Service include the following.

North Korea: Legislative Basis for U.S. Economic Sanctions, updated June 11, 2018:

Ebola: Democratic Republic of Congo, CRS Insight, June 12, 2018:

The Committee on Foreign Investment in the United States (CFIUS), updated June 19, 2018:

Intelligence Community Spending: Trends and Issues, updated June 18, 2018:

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

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