Posts from May, 2007

Judge Walton Named to Foreign Intel Surveillance Court

Judge Reggie B. Walton was appointed to the Foreign Intelligence Surveillance Court by the Chief Justice of the United States effective May 19, Secrecy News has learned.

The FIS Court, established by the Foreign Intelligence Surveillance Act of 1978, is composed of eleven District Court judges who are responsible for authorizing government requests for electronic surveillance and physical search of suspected foreign agents or terrorists within the United States.

Judge Walton has been a U.S. District Judge for the District of Columbia since 2001, having been appointed by President George W. Bush.

He replaces Judge Claude M. Hilton of the Eastern District of Virginia, whose term on the Foreign Intelligence Surveillance Court expired on May 18.

His appointment to the Court was confirmed for Secrecy News by Mr. Sheldon Snook, media liaison and assistant to the chief district judge of the D.C. District Court.

An updated list of members of the Foreign Intelligence Surveillance Court may be found here.

A biography of Judge Walton is here.

Judge Walton has gained prominence lately as the presiding judge in the trial of former Vice Presidential aide Lewis “Scooter” Libby.

Last year he ruled (pdf) in favor of the Federation of American Scientists in a Freedom of Information Act lawsuit against the National Reconnaissance Office.

Los Alamos Says Lab Archives Now Available to Researchers

Historians and other researchers may continue to access archival records at Los Alamos National Laboratory, officials said last week. But they also affirmed strict new limits on such access.

A story in Secrecy News (May 3) describing new restrictions on researchers was based on a misunderstanding by Lab personnel, Department of Energy and Lab officials said last week. Although there was a technical change in policy, access to the archives remains unaffected, the officials asserted.

The technical change occurred because Los Alamos National Security (LANS), the contractor that replaced the University of California as Lab manager, is not subject to the California Public Records Act (CPRA).

But “the actual practices at the [LANL] archives have not changed substantially due to this situation with CPRA,” officials said, particularly since the California law did not affect federal records.

Despite the new assertions, however, the current access policy for private researchers at Los Alamos is significantly constrained compared to the recent past. And the latest statement of policy is crafted in such a way as to limit direct access to unclassified records to those that have been specifically marked for public release.

In the past, Lab archivists would assist researchers by looking for relevant materials and making them available if they were unclassified. If the materials were classified, the archivists would assist with processing the records for review. That is apparently no longer the case.

Priscilla McMillan, author of the 2005 book “The Ruin of J. Robert Oppenheimer,” recalled that she had requested and received numerous archival records from Los Alamos over a period of two decades beginning in 1983 without ever filing a Freedom of Information Act request. She also performed research in the archive itself (usually but not always under supervision), a practice that is no longer permitted.

Today, according to an official statement, only records that are “clearly marked ‘Approved for Public Release’ may be released by the Lab archives without a FOIA request.”

“When anyone requests something from the archives that has a classification issue, FOIA has always been required,” the statement said, inaccurately.

It is of course understandable that some kind of formal review would be required prior to release of any classified records. But the wording of the current policy now requires researchers to file a FOIA request for any document — even an unclassified or previously declassified document — that is not “clearly marked ‘Approved for Public Release’.”

Notwithstanding official insistence that the current restricted access policy is “not new,” this is a departure from past practice that does not correspond to the recent experience of Ms. McMillan or other scholars and researchers.

Selected CRS Reports

Some noteworthy new (or newly acquired) reports of the Congressional Research Service include the following (all pdf).

“Homeland Security Department: FY2008 Request for Appropriations,” May 17, 2007.

“U.S.-Funded Assistance Programs in China,” May 18, 2007.

“North Korean Provocative Actions, 1950-2007,” updated April 20, 2007.

“North Korea: Terrorism List Removal?,” updated April 6, 2007.

“The North Korean Economy: Overview and Policy Analysis,” updated April 18, 2007.

“Presidential Directives: Background and Overview,” updated April 23, 2007.

DoD Inspector General Reviews Detainee Abuse Investigations

The Department of Defense did a poor job of investigating and addressing reports of detainee abuse committed in Iraq by U.S. military personnel, according to a newly declassified report (pdf) of the DoD Inspector General.

“Allegations of detainee abuse were not consistently reported, investigated, or managed in an effective, systematic, and timely manner,” the IG found.

“Reports of detainee abuse by special mission unit task force personnel dated back to June 2003, but we believe it took the publicized abuse at Abu Ghraib [in spring 2004]… to elevate the issue to the Flag Officer level.”

“There are many well-documented reasons why detention and interrogation operations were overwhelmed [including] … inconsistent training; a critical shortage of skilled interrogators, translators, and guard force personnel; and the external influence of special operations forces and OGAs [other government agencies, a euphemism for the CIA].”

The August 2006 Inspector General report, originally classified Secret, was released in redacted form last week.

See “Review of DoD-Directed Investigations of Detainee Abuse,” DoD Inspector General, August 25, 2006.

DNI Urges Update of Foreign Intelligence Surveillance Act

According to the Director of National Intelligence, the Foreign Intelligence Surveillance Act (FISA) of 1978, the law that regulates domestic intelligence surveillance, desperately needs to be updated to accommodate the latest technologies.

“Technology and threats have changed, but the law remains essentially the same,” wrote DNI Mike McConnell in a Washington Post op-ed on May 21. “The failure to update this law comes at an increasingly steep price.”

But contrary to Director McConnell’s surprising claim, FISA has been repeatedly and substantively modified and updated over the years.

“Abiding by FISA does not mean clinging to [an obsolete] 1978 structure,” said Rep. Jane Harman, then-ranking member of the House Intelligence Committee, last summer. “FISA has been modernized.”

“Each time the Administration has come to Congress and asked to modernize FISA, Congress has said ‘yes’,” she recalled (pdf).

The Congressional Research Service tabulated dozens of legislative changes (pdf) that were made to the FISA between 1994 and 2006.

Glenn Greenwald elaborated on some of the changes made to FISA in a vigorous rebuttal to the DNI’s op-ed. See “The administration’s FISA falsehoods continue unabated,” Salon, May 21.

Selected CRS Reports

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

“Congressional Oversight Manual,” updated May 1, 2007.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated May 9, 2007.

“Sea-Based Ballistic Missile Defense — Background and Issues for Congress,” updated April 27, 2007.

“Freedom of Speech and Press: Exceptions to the First Amendment,” updated April 26, 2007.

“The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice,” updated January 26, 2007.

A Review of the U.S. Highly Enriched Uranium Declaration

Updated Below

More than five years after it was completed, the Department of Energy last year finally released a landmark historical account of U.S. production of highly enriched uranium (HEU) from 1945 to 1996.

Conceived a decade ago as a bold initiative to set a new standard for international transparency and government accountability, the HEU study was released under pressure as an unwilling concession to the rule of law, i.e. the Freedom of Information Act.

The story of the five year campaign to win public disclosure of the HEU study and an initial assessment of its significance for nuclear nonproliferation policy were presented in a paper (pdf) by myself and Princeton physicist Frank von Hippel in the latest issue of The Nonproliferation Review.

See “The U.S. Highly Enriched Uranium Declaration: Transparency Deferred but not Denied” by Steven Aftergood and Frank von Hippel, Nonproliferation Review, Vol. 14, No. 1, March 2007.

The paper was discussed at a forum of the Monterey Institute Center for Nonproliferation Studies on May 17, with a response from Tom Blanton of the National Security Archive.

The HEU Study itself, “Highly Enriched Uranium: Striking A Balance,” is posted here.

Update: Arms Control Wonk had some interesting observations on possible next steps in international verification of past HEU production.

CRS on New U.S. Africa Command

U.S. Government plans to establish a new military command to be known as AFRICOM with responsibility for U.S. military forces in Africa are described in a new report (pdf) from the Congressional Research Service.

“As defined by the Department of Defense, AFRICOM’s mission will be to promote U.S. strategic objectives by working with African states and regional organizations to help strengthen stability and security in the region through improved security capability, military professionalization, and accountable governance. The command’s military operations would aim to deter aggression and respond to crises.”

“This report provides a broad overview of U.S. strategic interests in Africa and the role of U.S. military efforts on the continent as they pertain to the creation of a new Africa Command. Although the command is still in the planning phase, a discussion of AFRICOM’s potential mission, its coordination with other government agencies, and its basing and manpower requirements is included. This report will be updated as events warrant.”

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

See “Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa,” May 16, 2007.

GAO on Contractor Security Clearances

Delay and dysfunction in the personnel security clearance system are an old story, and the Government Accountability Office has been describing and updating that story for at least two decades, including new congressional testimony today (pdf) focusing on Department of Defense (DOD) contractors.

“DOD is responsible for about 2.5 million security clearances issued to servicemembers, DOD civilians, and industry personnel who work on contracts for DOD and 23 other federal agencies.”

“GAO’s analysis of timeliness data showed that industry personnel contracted to work for the federal government waited more than 1 year on average to receive top secret clearances, longer than OMB- and OPM-produced statistics would suggest.”

See “DoD Personnel Clearances: Delays and Inadequate Documentation Found for Industry Personnel,” [GAO-07-842T], May 17, 2007.