Posts from March, 2006

Judge John D. Bates Appointed to the FISA Court

Judge John D. Bates was appointed last month by Chief Justice John Roberts to serve on the Foreign Intelligence Surveillance Court.

Judge Bates of the D.C. District is the eleventh member of the secretive Court, which processes applications for domestic intelligence search and surveillance under the Foreign Intelligence Surveillance Act of 1978.

He replaces Judge James Robertson who resigned in December 2005 in what was widely viewed as a protest against the President’s warrantless surveillance program.

The appointment of Judge Bates to the FISA Court has not previously been reported.

When questioned by Secrecy News earlier this week, Justice Department officials refused to divulge the name of the newest FISA Court judge. The Justice officials suggested filing a Freedom of Information Act request.

But Judge Bates himself disclosed the February 2006 appointment in his online bio at the D.C. District Courthouse (thanks to S).

Judge Bates, a Republican appointee, has a distinctly conservative cast to his resume. From 1995-1997, he served as Deputy Independent Counsel to the intensely partisan Whitewater investigation. In 2002, he dismissed (pdf) a lawsuit brought by the congressional General Accounting Office seeking disclosure of records of the Vice President’s Energy Task Force.

But he has also ruled occasionally in favor of Freedom of Information Act litigants. And in 2004, he rejected the Bush Administration’s argument that a U.S. citizen detained abroad under U.S. control cannot invoke habeas corpus.

“The Court concludes that a citizen cannot be so easily separated from his constitutional rights,” Judge Bates memorably ruled (pdf) in Abu Ali v. John Ashcroft.

An FAS roster of FISA Court judges, now including Judge Bates, can be found here.

This and That

The Department of Energy has released a redacted version of its twentieth report on inadvertent releases (pdf) of classified nuclear weapons information found in declassified records at the National Archives. Upon examination of nearly 300,000 pages of public records, reviewers found 47 pages which they said should not have been released. Those pages were embedded in over a thousand pages of documents, all of which were removed from public access.

The defense contractor Sikorsky Aircraft has sued the Defense Department in an effort to block disclosure under the Freedom of Information Act of what it considers confidential commercial information, the Project on Government Oversight reported on its blog.

The record of a September 2005 Senate Judiciary Committee hearing on “ABLE DANGER and Intelligence Information Sharing” has recently been published.

The U.S. military must be prepared to respond to a deliberate or inadvertent incident occurring abroad that involves chemical, biological, radiological, nuclear, or high-yield explosives (CBRNE). Department of Defense Instruction 2000.21 on “Foreign Consequence Management,” (pdf) March 10, 2006, sets DoD policy on the subject.

Some FISA Court News

Judge Frederick J. Scullin, Jr. of the Southern Northern District of New York was identified last week as a member of the Foreign Intelligence Surveillance Court, which was established by the Foreign Intelligence Surveillance Act of 1978 to provide judicial authorization for intelligence search and surveillance activities within the United States.

Although Judge Scullin was appointed to the FISA Court in 2004, his name had not previously appeared in news stories about the Court or in published lists of its current membership, such as this one (now updated).

Judge Scullin, who recently retired from the District Court in New York (but not from the FISA Court), acknowledged his membership in the secretive surveillance court in interviews with the Syracuse Post-Standard (March 17) and the Albany Times Union (March 14).

Another new FISA Court judge has presumably been appointed by Chief Justice Roberts to replace Judge James Robertson, who resigned from the FISA Court in December 2005 in what was reported to be an expression of protest against the President’s warrantless surveillance program, which circumvented the FIS Court.

But officials at the Justice Department Office of Intelligence Policy and Review said they would not disclose the identity of the latest appointment to the FISA Court except in response to a Freedom of Information Act request. Such a request was duly filed.

See, relatedly, the updated FISA Court Rules of Procedure (pdf), effective February 17, 2006.

Some Resources

The website, sponsored by the National Security Archive, has produced a splendid new catalog of freedom of information laws in some 60 countries around the world, with links to underlying statutes and related background information (flagged by

“For the first time, the National Archives and Records Administration has made available online more than 400,000 State Department telegrams and other records for 1973 and 1974,” according to a NARA news release yesterday.

Secrecy News has been named “resource of the week” (thanks) by, which provides a daily survey of news, documents and tools for information professionals.

Some More CRS Reports

Rep. Bob Ney (R-OH), the most outspoken opponent of proposals to permit direct public access to Congressional Research Service reports, recently lost his chairmanship of the House Administration Committee in the initial fallout of the unfolding corruption scandals in Congress.

But it is unclear whether his sensible successor, Rep. Vernon Ehlers (R-CA) (R-Mich.), will be any more amenable to online public access to CRS products. It may be that this inevitable step will have to await the election of a whole new Congress that actually values public access to government information.

In the meantime, members of the public can get their CRS fix from “unauthorized” sources.

In addition to the FAS archive of CRS reports, there are rich complementary collections at the State Department’s Foreign Press Center and at CDT’s, among others.

Here are some notable new or recently updated CRS reports from FAS that are not available from those other sites.

“Balancing Scientific Publication and National Security Concerns: Issues for Congress,” updated February 2, 2006.

“National Emergency Powers,” updated February 10, 2006.

“Jordan: U.S. Relations and Bilateral Issues,” updated March 14, 2006.

“Global Climate Change: Federal Research on Possible Human Health Effects,” updated February 10, 2006.

“‘Bunker Busters’: Robust Nuclear Earth Penetrator Issues, FY2005-FY 2007,” updated February 21, 2006.

“The Exon-Florio National Security Test for Foreign Investment,” updated March 15, 2006.

“Military Retirement: Major Legislative Issues,” updated March 14, 2006.

“Navy Attack Submarine Force-Level Goal and Procurement Rate: Background and Issues for Congress,” updated January 18, 2006.

“Navy DD(X), CG(X) and LCS Ship Acquisition Programs: Oversight Issues and Options for Congress,” updated March 7, 2006.

“Improvised Explosive Devices (IEDs) in Iraq: Effects and Countermeasures,” February 10, 2006.

US Strategic Strike Skills Are Fading, DSB Warns

The U.S. military faces an erosion of the skills that it needs to develop and maintain strategic nuclear and non-nuclear strike forces, according to a new study (pdf) by the Defense Science Board (DSB).

“It appears that a serious loss of certain critical strategic strike skills may occur within the next decade” as senior design and operations personnel retire, the DSB study said.

“The strategic strike area most at risk today is ballistic missiles: Current skills may not be able to cope with unanticipated failures requiring analysis, testing, and redesign.”

“Design skills are rapidly disappearing, both for major redesigns of current systems and for the design of new strategic systems.”

“DoD and industry have difficulty attracting and retaining the best and brightest students to the science and engineering disciplines relevant to maintaining current and future strategic strike capabilities,” according to the DSB.

These findings are elaborated in the 89 page report with respect to ballistic missiles, bombers and other strategic strike platforms and systems.

See “Report of the Defense Science Board Task Force on Future Strategic Strike Skills,” March 2006 (1.9 MB PDF).

This document was password-protected by DSB so as to prevent copying or printing of the report.

Update: Thanks to F, the report is now available in unencrypted format, and can be freely copied and printed.

In Congress

A House resolution to investigate the so-called Downing Street memo on pre-war intelligence on Iraq was considered and rejected, along with two other resolutions on Iraq and the Valerie Plame case, in a September 14, 2005 markup by the House Committee on International Relations. See the report of that Committee markup (pdf).

Sen. Arlen Specter introduced his “National Security Surveillance Act” on March 16 that would subject the Bush Administration’s warrantless surveillance program to the adjudication of the Foreign Intelligence Surveillance Court.

Also on March 16, Senator Dewine and three Republican colleagues introduced their “Terrorist Surveillance Act” which would nullify the requirements of the Foreign Intelligence Surveillance Act and authorize warrantless surveillance for up to 45 days without any judicial authorization.

In the News

The Department of Defense withdrew from its web site a DoD inspector general report that was critical of information security in the Missile Defense Agency’s ground-based missile defense system. Federal Computer Week reported on the removal of the document and posted the missing document on its own web site. See “DOD removes missile defense system report from Web site” by Bob Brewin, Federal Computer Week, March 20.

Several critical assessments of the “sensitive but unclassified” information control marking were discussed in “New Reports Raise Questions About Secrecy Stamps” by Rebecca Carr, Cox News Service, March 19.

The consequences of applying espionage statutes not only to leakers but also to unauthorized recipients of classified information were considered by Fred Kaplan in “Spies Like Us: Listening to leakers could land you in jail,” Slate, March 17.

Captured Iraqi Documents Look Strangely Familiar

The Director of National Intelligence yesterday announced the public release of Iraqi documents that were captured by U.S. forces in Operation Iraqi Freedom.

The release came in response to pressure from House Intelligence Chairman Pete Hoekstra and Senator Rick Santorum, who had both introduced legislation to compel disclosure of the captured Iraqi documents, and from The Weekly Standard magazine and the Wall Street Journal editorial board.

“The accessibility of these materials represents an important departure from the past when previous document release efforts have taken many years,” the Office of the DNI said in a news release.

But the documents released by the DNI are a decidedly mixed bag.

Illustrating their eclectic nature, one of the captured Iraqi documents (pdf) is a print-out of an article from the Federation of American Scientists web site.

“This file contains document relevant to the Mukhabarat or Iraqi Intelligence Service (IIS), it explains the structure of the IIS,” according to the DNI synopsis of the document (record number CMPC-2003-006430).

In fact, the document was written in 1997 by John Pike (then at FAS, now at, except for an added cover page which is handwritten in Arabic.

The newly released documents may be found here.

See also “U.S. Reveals Once-Secret Files From Hussein Regime” by Greg Miller, Los Angeles Times, March 17.

The interesting possibility that raw intelligence materials like these could be productively assessed by members of the public working together online was optimistically considered by former intelligence officer Michael Tanji.

“A successful collaborative analysis of Iraqi documents has implications that go beyond just this problem set. Such an endeavor will not go unnoticed by the reform-minded in the intelligence community,” he wrote.

See “An Army of Analysts,” by Michael Tanji, The Weekly Standard, March 14.

Writing in the blog GroupIntel, Mr. Tanji also had a provocative response to the March 13 Secrecy News story on the new intelligence community document marking “RELIDO.”

See his “RELIDO: Why Bother?”