Posts from July, 2007

Even More from CRS

Some other recently updated Congressional Research Service reports that have not been made freely available to the public include these (all pdf).

“China’s Currency: Economic Issues and Options for U.S. Trade Policy,” updated June 28, 2007.

“Military Airlift: C-17 Aircraft Program,” updated June 5, 2007.

“Indonesia: Domestic Politics, Strategic Dynamics, and American Interests,” updated June 20, 2007.

“The Global Peace Operations Initiative: Background and Issues for Congress,” updated June 11, 2007.

“Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress,” updated June 19, 2007.

“War Powers Resolution: Presidential Compliance,” updated June 12, 2007.

The Rise of Intelligence Fusion Centers

One of the few comparatively new features in the post-cold war landscape of U.S. intelligence is the emergence of dozens of domestic intelligence “fusion centers.”

These are state and local offices across the country that are supposed to integrate (or “fuse”) multiple information streams from national intelligence sources together with local law enforcement and other data in order to enhance homeland security and increase preparedness against terrorism or natural disasters.

A major new report (pdf) from the Congressional Research Service finds that this aspect of the domestic intelligence and homeland security infrastructure is still far from mature.

“It is unclear if a single fusion center has successfully adopted a truly proactive prevention approach to information analysis and sharing. No state and its local jurisdictions appear to have fully adopted the intelligence cycle.”

In principle, fusion centers represent a conduit “through which federal intelligence can flow across the country.”

But “numerous fusion center officials claim that although their center receives a substantial amount of information from federal agencies, they never seem to get the ‘right information’ or receive it in an efficient manner,” the CRS report stated.

“It could be argued that if information flow into fusion centers is limited, the quality of the information is questionable, and the center doesn’t have personnel with the appropriate skill sets to understand the information, then the end result may not provide value.”

At the same time, “the potential fusion center use of private sector data, the adoption of a more proactive approach, and the collection of intelligence by fusion center staff and partners has led to questions about possible civil liberties abuses,” the report noted.

There are now more than 40 intelligence fusion centers around the country. The 100-page CRS report includes a map and a list of these centers. A copy was obtained by Secrecy News.

See “Fusion Centers: Issues and Options for Congress,” July 6, 2007.

More From CRS

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

“Statutory Offices of Inspector General: Past and Present,” updated June 21, 2007.

“Medal of Honor Recipients: 1979-2007,” updated May 29, 2007.

“GAO: Government Accountability Office and General Accounting Office,” updated June 22, 2007.

“Digital Surveillance: The Communications Assistance for Law Enforcement Act,” updated June 8, 2007.

“Tactical Aircraft Modernization: Issues for Congress,” updated June 8, 2007.

“Arms Control and Nonproliferation: A Catalog of Treaties and Agreements,” updated June 1, 2007.

Twists and Turns in Pentagon Information Policy

Some of the most important news in Department of Defense information policy has to do with what did not happen.

Earlier this year, the Pentagon asked Congress to enact two new provisions that would have restricted public access to broad swaths of unclassified information. But Congress declined to approve either one.

One provision would have created a new exemption for unclassified information regarding weapons of mass destruction. The other proposed provision would have established civil and criminal penalties for unauthorized publication or sale of “geodetic products” (i.e. maps and images) that the Secretary of Defense had designated for “limited distribution.”

Neither provision survived in either the House or Senate versions of the FY 2008 Defense Authorization Act and, barring extraordinary developments, will not be enacted into law.

Also this year, a Freedom of Information Act exemption for “operational files” of the Defense Intelligence Agency is set to expire. DIA did not request, and will not receive, an extension of the controversial exemption, which was adopted in the 2006 Defense Authorization Act with a “sunset” date of December 31, 2007.

Last week, the Department of Defense issued a final rule setting forth “the policies and procedures … that permit U.S. citizens to perform historical research in records created by or in the custody of the Office of the Secretary of Defense (OSD).”

CRS Views Private Security Contractors in Iraq

The extensive reliance by the U.S. government on private security contractors to support military forces in Iraq poses numerous policy and legal questions that are explored in a new report (pdf) from the Congressional Research Service.

“The use of armed contractors raises several concerns for many Members, including transparency and accountability,” the report begins. “Transparency issues include the lack of public information on the terms of their contracts, including their costs and the standards governing their hiring and performance, as well as the background and training of those hired under contract.”

“The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern.”

“Contractors working with the U.S. military (or with any of the coalition forces) in Iraq are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States.”

“This report summarizes what is currently known about companies that provide personnel for security missions in Iraq and some sources of controversy surrounding them.”

A copy of the report was obtained by Secrecy News.

See “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues,” updated June 21, 2007.

The Los Angeles Times reported on July 4 that “The number of U.S.-paid private contractors in Iraq now exceeds that of American combat troops… More than 180,000 civilians — including Americans, foreigners and Iraqis — are working in Iraq under U.S. contracts, according to State and Defense department figures obtained by the Los Angeles Times.”

Some More CRS Reports

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

“Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,” updated June 26, 2007.

“Defense Procurement: Full Funding Policy — Background, Issues, and Options for Congress,” updated June 15, 2007.

“Data Mining and Homeland Security: An Overview,” updated June 5, 2007.

“Coast Guard Deepwater Program: Background, Oversight Issues, and Options for Congress,” updated June 22, 2007.

“Recess Appointments Made by President George W. Bush, January 20, 2001-June 4, 2007,” updated June 14, 2007.

Some Other Notable Publications

National security information sharing between the executive branch and Congress is examined in a recent law review article by Heidi Kitrosser. The author suggests that legitimate executive branch secrecy concerns can be addressed by limiting disclosure of certain information to selected congressional committees or other subsets of Congressional membership, which she calls “information funnels.” See “Congressional Oversight of National Security Activities: Improving Information Funnels” by Heidi Kitrosser, Cardozo Law Review, Vol. 29, 2007.

Intelligence oversight in democratic societies is the subject of a new book from the Geneva Centre for the Democratic Control of Armed Forces. For more information and selected excerpts from the book, see “Democratic Control of Intelligence Services : Containing Rogue Elephants” by Hans Born and Marina Caparini, July 2007.

Military Intelligence History in Washington, DC

A new pamphlet (pdf) from the U.S. Army Intelligence and Security Command (INSCOM) History Office describes locations in and around Washington, D.C. that have significant associations with the history of U.S. military intelligence.

“The sites selected span two centuries of military intelligence in support of the Nation and its Army, starting with George Washington in the Revolutionary War and ending with William F. Friedman in World War II,” according to the introduction.

A dozen or so sites are described, and directions for finding them are provided.

The locations of grave sites of notable figures in military intelligence at Arlington National Cemetery, including cryptologists William Friedman and his wife Elizebeth (misspelled here as “Elizabeth”), are provided.

The new INSCOM pamphlet was published this year in hardcopy only, but a scanned version is now available online.

See “On the Trail of Military Intelligence History: A Guide to the Washington, DC, Area,” U.S. Army INSCOM History Office, 2007 (36 pages, 2.6 MB PDF).

Another Look at the VP’s Classification Authority

The White House press office and some Bush Administration critics are insisting that the 2003 executive order on classification policy endowed the Vice President with a unique status and classification powers identical to those of the President himself.

But that’s not what the executive order says.

“In this executive order the President is saying that the Vice President is not different than him,” said White House press secretary Dana Perino on June 25.

“The executive order on classified national security information — Executive Order 12958 as amended in 2003 — makes it clear that the Vice President is treated like the President and distinguishes the two of them from ‘agencies’,” wrote David Addington, the Vice President’s chief of staff in a June 26 letter (pdf) to Senator Kerry.

Similarly, New York Times columnist and Bush critic Frank Rich wrote yesterday that in 2003 “every provision [in the executive order] that gave powers to the president over classified documents was amended to give the identical powers to the vice president.”

Mr. Rich claimed that “this unprecedented increase in vice-presidential clout” has “special importance” for understanding the Iraq war, the Valerie Plame case and more.

“By giving Mr. Cheney the same classification powers he had, Mr. Bush gave his vice president a free hand to wield a clandestine weapon: he could use leaks to punish administration critics,” wrote Mr. Rich.

From an opposing political perspective, Byron York of the National Review wrote last year that the revised executive order constituted an “enormously consequential expansion of vice-presidential power.”

More soberly, the Congressional Research Service reported in a memo to Rep. Henry Waxman (pdf) that “Among the modifications made by the new [executive] order were the vesting of the vice president with authority coequal to that of the President to security classify information originally.”

And I myself wrote in Secrecy News last year that the language of the 2003 executive order “dramatically elevates the Vice President’s classification authority to that of the President.”

On closer examination, none of this appears to be correct.

The text of the 2003 executive order does not grant any new classification authority to the Vice President beyond that which he already possessed as one of some two dozen officials authorized by the President to classify information originally at the Top Secret level. Like those other officials, the Vice President was already authorized to classify information within the scope of the executive order, and to delegate his authority to others. No additional classification powers were provided in the new order.

A line by line comparison of the Bush executive order with the prior order, indicating what was added and what was deleted in 2003, shows that every classification authority granted to the Vice President was also granted to other agency heads, such as the Secretary of Defense or the Secretary of State, and was also possessed by the Vice President himself in the past.

Mr. Addington and the White House press office argue that the mere juxtaposition of references to the President and the Vice President in the text of the 2003 Bush order — such as in section 1.3(a)(1) — somehow translates into new status for the Vice President. But again, no such status or new authority is articulated in the order.

To the contrary, the Director of the Information Security Oversight Office, who is charged by the President with implementing and overseeing the executive order, concluded that an interpretation of the order which treats the Office of the Vice President as entirely distinct from other executive branch entities is not consistent with a “plain text reading,” as he wrote to the Attorney General (pdf).

Fundamentally, the Vice President’s classification authority is not and cannot be identical to that of the President. The President’s authority is inherent, stemming from his status as commander in chief of the armed forces; the Vice President’s authority is derivative. Likewise, and for the same reason, the President can alter the provisions of the executive order at a moment’s notice; the Vice President cannot.

TALON Database Complied with Law, IG Says

The Department of Defense TALON database of threat information that compiled information on U.S. persons involved in domestic protests was implemented in compliance with U.S. law, a review by the DoD Inspector General (pdf) concluded. However, some of the raw information was improperly retained in violation of a DoD directive, the IG said in an extensive new report.

See “The Threat and Local Observation Notice (TALON) Report Program,” DoD Inspector General, June 27, 2007 (flagged by Sabrina Pacifici at BeSpacific.com).