Posts from August, 2007

CRS on “The Protect America Act”

The controversial amendments to the Foreign Intelligence Surveillance Act (FISA) that were enacted under intense Administration pressure earlier this month are reviewed section-by-section in a new report (pdf) from the Congressional Research Service.

The legislation, dubbed the “Protect America Act of 2007,” removed legal impediments to the interception of foreign communications that pass through the United States. But it also redefined the terms of the FISA so as to permit increased surveillance of communications involving persons in the United States while curtailing judicial supervision.

The new CRS report offers a careful reading of each provision of the Act.

But instead of fully clarifying its impact, the report serves to highlight just how unclear and indeterminate the new law actually is.

Thus, one provision “could conceivably be interpreted” to apply to parties within the United States. Another provision “might be seen to be susceptible of two possible interpretations.” Still others “appear to” or “would seem to” or “may also” have one uncertain consequence or another.

In other words, the new law bears the hallmarks of its hasty, poorly considered origins.

The new CRS report may help to identify some of the questions that Congress will examine when it revisits the legislation next month.

A copy of the report was obtained by Secrecy News.

See “P.L. 110-55, the Protect America Act of 2007: Modifications to the Foreign Intelligence Surveillance Act,” August 23, 2007.

CRS on Various Topics

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include these (all pdf).

“Diplomacy for the 21st Century: Transformational Diplomacy,” August 23, 2007.

“U.S. Foreign Aid to East and South Asia: Selected Recipients,” updated August 22, 2007.

“The Role of National Oil Companies in the International Oil Market,” August 21, 2007.

“The War Crimes Act: Current Issues,” updated July 23, 2007.

“Manipulating Molecules: Federal Support for Nanotechnology Research,” updated August 2, 2007.

The FBI as an Intelligence Organization

The Federal Bureau of Investigation, which has increasingly supplemented its traditional law enforcement role with new intelligence and counterterrorism functions, now says its paramount objective is to “prevent, disrupt, and defeat terrorist operations before they occur.”

New domestic intelligence collection activities that have been adopted in pursuit of this goal are described in unusual detail in the Bureau’s 2008 budget request (pdf).

Special attention is given to cultivating human intelligence sources.

“The FBI recruits new CHSs [confidential human sources] every day,” the budget request notes. But without increased budget support, the FBI says it will not be possible to validate these sources and to determine the credibility of the information they provide.

“With current resources, the FBI is unable to reach a point where all CHSs are successfully subjected to the CHSV [confidential human source validation] process.”

The budget request refers in passing to “more than 15,000″ confidential human sources requiring validation (page 4-24).

The FBI also seeks new funds for intelligence collection training and operations.

“Without this training, the FBI would lack the full capacity to provide SAs [special agents] the comprehensive tradecraft, procedural, legal and policy direction needed to execute the significant and constitutionally sensitive domestic intelligence collection mission with confidence,” the budget document states (page 4-27).

The FBI’s budgetary focus on expanding its human intelligence capability was first reported by Justin Rood of ABC News. See “FBI Proposes Building Network of U.S. Informants,” July 25.

The same FBI budget document provides significant new detail on other FBI intelligence and counterterrorism activities, as well as the FBI open source program, the National Virtual Translation Center, and other initiatives.

The Washington Post reported that there were nearly 20,000 positive matches of individuals seeking to enter the United States who were flagged by the Terrorist Screening Center, according to the FBI budget request. Despite the surprisingly large figure, only a small number of arrests resulted.

See “Terror Suspect List Yields Few Arrests” by Ellen Nakashima, Washington Post, August 25.

Domestic Use of Spy Satellites Questioned

The chairman of the House Homeland Security Committee scolded Homeland Security Secretary Michael Chertoff last week for failing to notify him of plans to expand the use of intelligence satellites for homeland security applications.

“Unfortunately, I have had to rely on media reports to gain information about this endeavor because neither I nor my staff was briefed on the decision to create this new office prior to the public disclosure of this effort,” wrote Rep. Bennie Thompson in an August 22 letter (pdf) to Secretary Chertoff (who has been mentioned as a possible nominee to replace Alberto Gonzales as Attorney General).

“I need you to provide me with an immediate assurance that upon its October 1st roll out, this program will be operating within the confines of the Constitution and all applicable laws and regulations,” Chairman Thompson wrote.

“Additionally, because I have not been informed of the existence of this program for over a two year period, I am requesting that for the next six weeks, you provide me with bi-weekly briefings on the progress of the [National Applications Office] working groups.”

The Thompson letter as well as the new homeland security initiative were first reported in the Wall Street Journal.

A Washington Post editorial said that any use of spy satellites for domestic monitoring “must be accompanied… by robust protections for privacy and civil liberties.” The failure to properly advise Congress was “not a comforting start for a landmark change.”

See, relatedly, “Politician blasts Chertoff on spy satellite plans” by Carol Eisenberg, Newsday, August 24.

Army JAG Issues Operational Law Handbook

A comprehensive introduction to military operational law is presented in a new edition of the Operational Law Handbook (pdf) published by the U.S. Army Judge Advocate General.

The Handbook, intended for the use of judge advocates, describes tactics and techniques for the practice of operational law.

Along the way, it provides a useful survey of the laws of war, human rights law, prisoner detainment policy, the use of contractors alongside military forces, and intelligence law, among other topics.

“Because intelligence is so important to the commander, operational lawyers must understand the basics of intelligence law, including how law and policy pertain to the collection of human intelligence, such as interrogation operations,” the Handbook states.

See “Operational Law Handbook,” The Judge Advocate General’s Legal Center and School, July 2007 (667 pages, 6 MB PDF file).

A Glimpse of the SILEX Uranium Enrichment Process

A relatively new technology for enriching uranium known as “Separation of Isotopes by Laser Excitation” or SILEX is described in some fresh detail in a recent Los Alamos paper (pdf).

SILEX, developed in 1992 by Australian scientists, is the rarest of birds in U.S. classification policy: It is privately generated information that is nevertheless classified by the U.S. government.

Ordinarily, information must be owned or controlled by the government in order to be eligible for classification in the first place. But under the peculiar terms of the Atomic Energy Act, the government may impose classification on “all” information concerning nuclear weapons and related matters that has not been previously declassified.

Since the new SILEX technology has never been declassified, it is ipso facto classified, despite the fact that it was generated by private (and foreign) researchers. It is the only known case in which the Atomic Energy Act has been used in this constitutionally questionable manner. (See Secrecy News, 06/26/01).

Unclassified details of the SILEX process, which uses pulsed lasers to selectively excite uranium hexafluoride molecules containing uranium-235, are presented in “Enrichment Separative Capacity for SILEX” by John L. Lyman, Los Alamos National Laboratory, LA-UR-05-3786 (thanks to WT).

CIA IG Report on 9/11 Declassified by Law

In compliance with a requirement imposed by Congress, the Central Intelligence Agency declassified and released the executive summary of a CIA Inspector General report (pdf) that was generally critical of CIA performance prior to September 11, 2001.

From a secrecy policy point of view, the most interesting thing about the disclosure is that it was the result of a congressional initiative undertaken against the wishes of the executive branch.

“While meeting the dictates of the law,” said CIA Director Mike Hayden in an official statement, “I want to make it clear that this declassification was neither my choice nor my preference.”

In theory, the CIA’s “choice” or “preference” should be irrelevant to the declassification process. The President has directed categorically that “Information shall be declassified as soon as it no longer meets the standards for classification under this order.” (Executive Order 13292, section 3.1). It is clear from the release of the Inspector General report, which was partially redacted, that it could be declassified. And therefore it should have been.

But the executive order is not self-enforcing and declassification does not occur spontaneously. Without some external stimulus it may not occur at all.

In this case, Congress provided the missing ingredient, thanks to Sen. Ron Wyden (D-OR), who authored the amendment to the recent legislation implementing the recommendations of the 9/11 Commission.

While giving the needed push, Congress did not declassify the document itself, which is arguably within its power, nor did it define the precise terms of declassification, stating only that the document should be “declassified to the maximum extent possible, consistent with national security” — as determined by the CIA.

A more ambitious and unprecedented declassification action is the congressional requirement to disclose the amount of the 2007 National Intelligence Program budget, which must be declassified and released by October 30. No exercise of discretion is permitted.

Air Force Views Irregular Warfare

In what might be seen as a response to last year’s popular Army Field Manual 3-24 on Counterinsurgency (pdf), the U.S. Air Force has issued a new publication on “Irregular Warfare” (pdf).

“Irregular warfare (IW) is defined as a violent struggle among state and nonstate actors for legitimacy and influence over the relevant populations. IW favors indirect approaches, though it may employ the full range of military and other capabilities to seek asymmetric approaches in order to erode an adversary’s power, influence, and will.”

Though less rigorous and less original than the Army manual, the new document still contains points of interest.

It notes, for example, that counterinsurgency is not the sum total of U.S. military objectives. To the contrary, sometimes the U.S. will side with insurgents: “Various US government organizations are postured to recruit, organize, train, and advise indigenous guerrilla or partisan forces,” the document observes.

“In some UW [unconventional warfare] operations, the use of US military aircraft may be inappropriate, tactically or politically. In those cases, training, advising, and assisting the aviation forces of insurgent groups, resistance organizations, or third-country nationals may be the only viable option.”

See “Irregular Warfare,” Air Force Doctrine Document 2-3, 1 August 2007.

Details Sought on Domestic Use of Spy Satellites

Updated below

Although Congress is out of session, the news that classified intelligence satellites may increasingly be used for domestic surveillance applications did not go unnoticed by congressional overseers.

Rep. Ed Markey (D-MA), chair of a House Energy and Commerce subcommittee, sent a letter (pdf) to Homeland Security Secretary Michael Chertoff seeking answers to a series of detailed questions about the new initiative, which was first reported in the Wall Street Journal. Among Rep. Markey’s questions were these:

  • Will the public have an opportunity to comment on the development of appropriate guidelines for domestic use of spy satellites?
  • What assessments of the legality of the new surveillance program have been performed?
  • How does the Department plan to ensure that Americans’ privacy and civil rights are protected once this new surveillance program becomes operational?

A copy of Mr. Markey’s August 16 letter is here. A response was requested no later than September 7.

The new surveillance program “has drawn sharp criticism from civil liberties advocates who say the government is overstepping the use of military technology for domestic surveillance,” wrote Eric Schmitt in the New York Times. See “Liberties Advocates Fear Abuse of Satellite Images,” August 17.

Update
:
Rep. Bennie Thompson, chair of the House Homeland Security Committee, scolded the Department of Homeland Security in an August 22 letter (pdf) for failing to properly brief his Committee on the new surveillance program and for not taking account of civil liberties concerns in the development of the program. Rep. Thompson’s letter was first reported by Bobby Block in the Wall Street Journal August 23.