Posts from September, 2006

Govt Will Appeal FOIA Ruling on NRO Budget Docs

The U.S. Department of Justice said this week that it will seek to overturn a federal court ruling that required the National Reconnaissance Office to process a request from the Federation of American Scientists for release of NRO budget documents.

In a July 24, 2006 decision (pdf), Judge Reggie B. Walton had ruled that the NRO’s refusal to process the FAS Freedom of Information Act request was unlawful.

Judge Walton ordered the intelligence agency to move forward with the request, which was limited to unclassified budget records. The NRO promptly advised FAS that it would comply with the order.

But instead, the Justice Department indicated (pdf) on September 20 that it would challenge the decision in the DC Circuit Court of Appeals.

The action is consistent with the Bush Administration’s restrictive Freedom of Information Act policy, which encourages agencies to withhold information whenever possible and promises to support them when they do.

“When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions,” Attorney General John Ashcroft told executive branch agencies in the October 12, 2001 policy.

In other FOIA news, the Senate Judiciary Committee approved bipartisan legislation sponsored by Senators Cornyn and Leahy that would make certain procedural improvements in the FOIA.

Senator Leahy itemized the proposed changes in a September 21 news release.

While the Cornyn-Leahy changes would be welcome, none of them could substitute for an official commitment to open government or a rational disclosure policy.

Nor would they dissuade the Justice Department from working to overturn judicial decisions in favor of FOIA plaintiffs like that of Judge Walton.

DoD Inspector General Disables ABLE DANGER

Contrary to allegations by some military officers and members of Congress, the Top Secret Department of Defense intelligence analysis program known as ABLE DANGER “did not identify Mohammed Atta or any other of the 9/11 terrorists before the 9/11 attack,” a review by the Department of Defense Inspector General concluded (9.2 MB PDF).

Rep. Curt Weldon (R-PA), a proponent of the view that ABLE DANGER was deliberately covered up because of its success in identifying the 9/11 conspirators, wasn’t having it.

“Acting in a sickening bureaucratic manner, the DOD IG cherry-picked testimony from witnesses in an effort to minimize the historical importance of the Able Danger effort,” the Congressman said.

Even More from CRS

Some recent reports of the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Science and Technology Policy: Issues for the 109th Congress,” updated September 1, 2006.

“Navy Ship Names: Background For Congress,” updated September 1, 2006.

“Legal Developments in International Civil Aviation,” updated August 25, 2006.

“Homeland Security Research and Development Funding, Organization, and Oversight,” updated August 22, 2006.

David Lykken and the Polygraph Myth

David T. Lykken, a psychologist who did pioneering research and public education on the limits and abuses of polygraph testing, died last week at age 78.

With exceptional clarity he demonstrated that the polygraph is not a “lie detector” but simply a recorder of physiological responses to verbal stimuli. And, he explained, there is no set of physiological responses that corresponds uniquely to deception.

That does not mean the polygraph is worthless. There is empirical evidence to support its use in the investigation of specific incidents, where “guilty knowledge” of particular details may be usefully revealed by the polygraph.

“The use of the [polygraph] by the police as an investigative tool, while subject to abuse like any other tool, is not inherently objectionable,” Lykken wrote.

(Not only that, “It seems reasonable to conclude that whether O.J. Simpson did or did not kill his wife could have been determined with high confidence using a Guilty Knowledge Test administered within hours after he was first in police custody.”)

On the other hand, he said, the use of the polygraph for security screening of personnel, as is commonly done by U.S. intelligence agencies, cannot reliably achieve its purported goal of identifying spies or traitors and in many cases becomes counterproductive.

“I think it is now obvious that polygraph testing has failed to screen out from our intelligence agencies potential traitors and moles. On the contrary, it seems to have served as a shield for such people who, having passed the polygraph, become immune to commonsense suspicions.”

Lykken produced a body of work that is prominently cited in every bibliography of polygraph-related research. And he addressed the interested public in a highly readable 1998 book called “A Tremor in the Blood” (an allusion to Defoe), which is full of colorful observations as well as analytical rigor.

So, for example, he reports that Pope Pius XII condemned polygraph testing in 1958 because it “intrude[s] into man’s interior domain” (Tremor, page 47).

And “when Bedouin tribesmen of the Negev desert were examined on the polygraph, they were found to be far less reactive than Israeli Jews, whether or Near Eastern or European origin” (page 273).

Dr. Lykken was profiled in a September 20 obituary in the New York Times.

It is a sign of our times that the scientific critique of polygraph testing has gained almost no traction on government policy. To the contrary, the use of the polygraph to perform the sort of screening that Lykken termed a “menace in American life” is actually on the rise.

“From FY 2002 through 2005, the FBI, DEA, and ATF conducted approximately 28,000 pre-employment polygraph examinations” as well as tens of thousands more for other purposes, according to a major new report from the Justice Department Inspector General.

See “Use of Polygraph Examinations in the Department of Justice” (pdf), September 2006.

Characteristically, the new Inspector General report did not even consider the question of the polygraph’s scientific reliability.

In particular, as George Maschke of AntiPolygraph.org told CQ Homeland Security, the Justice Department report failed to grapple with a 2002 finding of the National Academy of Sciences that “[polygraph testing's] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.”

Aldrich H. Ames, the former CIA officer whose years of espionage against the United States went undetected by the polygraph, reflected on the mythology of the polygraph in a letter that he wrote to me from federal prison in November 2000.

Military Intelligence Professional Bulletin

When the U.S. Army established a password-protected internet portal called Army Knowledge Online a few years ago, it swallowed up untold thousands of unclassified records that had previously been publicly available on the world wide web, and then ceased to be.

One such item was the Military Intelligence Professional Bulletin (MIPB), a quarterly Army journal on military intelligence policy, doctrine, and technology.

Requests for softcopies of the unclassified MIPB were repeatedly submitted to the Army by the Federation of American Scientists under the Freedom of Information Act. After years of denials and deferrals, U.S. Army lawyers were finally unable to devise a legal rationale to justify continued withholding of the MIPB. Last week, the latest issues from 2004 and 2005 were fully released.

They may be found here, along with previous issues dating back to 1995.

Better yet, the Army told us that the MIPB will be restored to direct public access on the web so that FOIA requests will no longer be required.

The Riddle of Steel and More from CRS

Commercial vendors will happily sell you almost any Congressional Research Service report issued in the last decade, making CRS secrecy profitable for some but otherwise pointless. Yet Congress has stubbornly told the CRS not to make its reports directly available to the taxpaying public, who have already paid for them once.

Some recent CRS reports that are not otherwise freely available in public databases include the following (all pdf).

“Steel: Price and Policy Issues,” updated August 31, 2006.

“U.S. Strategic Nuclear Forces: Background, Developments, and Issues,” September 8, 2006.

“Federal Counter-Terrorism Training: Issues for Congressional Oversight,” August 31, 2006.

“Navy Aircraft Carriers: Proposed Retirement of USS John F. Kennedy — Issues and Options for Congress,” updated August 29, 2006.

“Free Mail for Troops Overseas,” updated August 22, 2006.

Declassification Board Tasked to Review Senate Reports

Senate Intelligence Committee Chairman Pat Roberts (R-KS) has endorsed a proposal to task the Public Interest Declassification Board (PIDB) to review the recent Intelligence Committee reports on pre-war intelligence to determine if they were properly declassified.

He acted in response to harsh criticism from Senate Democrats alleging that the Bush Administration had abused its classification authority to conceal embarrassing or offensive information in the reports that was unrelated to national security.

Instead of pursuing legislative action to compel declassification, as urged by Senate Minority Leader Harry Reid, Senator Roberts said that the PIDB should be asked to render a judgment, as originally proposed last week by Sen. Ron Wyden.

“Let’s let the Public Interest Declassification Board take a look at these reports,” said Sen. Roberts in the course of a heated debate on the Senate floor September 14.

“That was the suggestion by Senator Wyden, picked up by Senator Bond, endorsed by myself and I think by the Senator from West Virginia [Sen. Rockefeller]. That is the proper way to go about it,” Sen. Roberts said.

The endorsement by Intelligence Committee Chairman Roberts is crucial to the activation of the Declassification Board, since the PIDB, under the terms of its enabling legislation, accepts congressional requests for declassification review only when they are “made by the committee of jurisdiction,” not by individual members.

The review of the contested Intelligence Committee reports will be the first such action to be undertaken by the Board, and it is likely to set a precedent, whether favorable or unfavorable, for similar reviews in the future.

The Public Interest Declassification Board, established by statute in 2000 and modified by the intelligence reform legislation of 2004, is composed of nine non-governmental persons appointed by the President and congressional leaders. Eight of the nine members have been named so far. A ninth member, who is to be designated by Senate Minority Leader Harry Reid, has still not been appointed.

Undisclosed U.S. Detention Sites Overseas and More from CRS

The use of secret U.S. prison facilities abroad, first reported by Dana Priest in the Washington Post in November 2005, has since been confirmed by President Bush and has become the focus of controversy in the U.S. and elsewhere.

A new report (pdf) from the Congressional Research Service synthesizes what is now publicly known about the secret prisons and discusses some of the relevant legal concerns they raise. (“It is based on available open-source documentation, as cited, and not on any independent CRS investigation.”)

A copy of the new report was obtained by Secrecy News.

See “Undisclosed U.S. Detention Sites Overseas: Background and Legal Issues,” September 12, 2006.

Some miscellaneous other new products from CRS include the following (all pdf).

“Israeli-Arab Negotiations: Background, Conflicts, and U.S. Policy,” updated September 1, 2006.

“Israel: Background and Relations with the United States,” updated August 31, 2006.

“Saudi Arabia: Current Issues and U.S. Relations,” August 2, 2006.

“Sri Lanka: Background and U.S. Relations,” updated August 1, 2006.

“Navy Ship Procurement: Alternative Funding Approaches — Background and Options for Congress,” updated July 26, 2006.

“Navy Attack Submarine Force-Level Goal and Procurement Rate: Background and Issues for Congress,” updated July 26, 2006.

“Navy Ship Propulsion Technologies: Options for Reducing Oil Use — Background for Congress,” updated July 26, 2006.

“Navy DDG-1000 (DD(X)), CG(X), and LCS Ship Acquisition Programs: Oversight Issues and Options for Congress,” updated July 26, 2006.

“Navy-Marine Corps Amphibious and Maritime Prepositioning Ship Programs: Background and Oversight Issues for Congress,” updated July 26, 2006.

“Unmanned Vehicles for U.S. Naval Forces: Background and Issues for Congress,” updated July 26, 2006.

Conflicting Bills on Warrantless Surveillance Advance in Senate

The Senate Judiciary Committee set the stage for further congressional debate over warrantless electronic surveillance by reporting out competing bills that are mutually contradictory.

A bill (S. 2453) sponsored by Committee Chairman Arlen Specter would sharply diminish judicial oversight of intelligence surveillance under the Foreign Intelligence Surveillance Act and expand unilateral presidential authority. On the other hand, a bill (S. 3001) sponsored by Senator Dianne Feinstein would reaffirm that FISA is the exclusive mechanism for conducting domestic intelligence surveillance, while making certain modifications in the Act. A third bill (S. 2455), sponsored by Sen. Mike DeWine, was also reported out.

“The [Specter] bill makes compliance with FISA entirely optional, and explicitly validates the President’s claim that he has unfettered authority to wiretap Americans in the name of national security,” said Sen. Patrick Leahy (D-VT) in a critical commentary.

“I have been briefed on the terrorist surveillance program,” said Sen. Feinstein, “and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process.”

“So I have offered this provision to ensure that the program is carried out under the law and to make it clear that FISA remains the exclusive authority for the content collection on U.S. persons,” she said.

Sen. Jay Rockefeller (D-WV) charged that the Bush Administration had deliberately withheld information about the surveillance program from Congress to frustrate congressional oversight.

“This refusal to respond to legitimate information requests from the Oversight Committee, combined with the administration’s over-restriction of member and staff access to the NSA program, is part of a cynical White House strategy to prevent Congress from either acting or forcing it to legislate on vital national security and privacy issues in the dark,” he said.

Sen. Russ Feingold concurred that due to excessive secrecy, “The Judiciary Committee was left to legislate in the dark, with many members blindly seeking to legalize illegal behavior without even an understanding of whether those changes are actually necessary.”

Meanwhile, in the House, a bill sponsored by Rep. Heather Wilson (R-NM) faced opposition from the Bush Administration and its Congressional allies, as well as from civil libertarians.

The bill was examined in detail in a new report from the Congressional Research Service. See “H.R. 5825 (109th Congress): ‘Electronic Surveillance Modernization Act’” (pdf), September 8, 2006.

The various competing bills were discussed, and notably analyzed by James X. Dempsey of the Center for Democracy and Technology, in a September 6 hearing of the House Judiciary Committee on “Legislative Proposals to Update the Foreign Intelligence Surveillance Act.”

The full hearing record of three Senate Judiciary Committee hearings earlier this year on “Wartime Executive Power and the National Security Agency’s Warrantless Surveillance Authority” has just been published (908 pages).

House Approves Database of Government Contracts

The House of Representatives approved a bill to establish a publicly searchable database of federally-funded grants and contracts. The Senate adopted the measure last week, and the White House indicated that the President would sign it.

“This bill would require the Office of Management and Budget to create a Web site listing all grant awards and contracts in a manner that would be easily accessible and free of charge. In a nutshell, this is about [providing] information to taxpayers about how their hard-earned dollars are being spent,” said Rep. Tom Davis (R-VA).

“The legislation we are passing today is not comprehensive reform; it will not restore honesty and accountability in government,” said Rep. Henry Waxman (D-CA). “It’s a modest, bipartisan step in the direction of open government. But in the climate we’re currently in, even a small step forward is worth supporting and celebrating.”

See the September 13 House floor debate on the Federal Funding Accountability and Transparency Act of 2006 here.