Posts from August, 2008

Sourcebook on the Aerospace Data Facility

A new documentary collection (pdf) provides a glimpse of the Aerospace Data Facility at Buckley Air Force Base in Aurora, Colorado, which is an operational hub for intelligence support to the U.S. military.

“The Aerospace Data Facility is a DoD information processing, analysis, relay, and test facility supporting the U.S. Government and its allies,” according to one official document.

Among other things, the ADF represents “the major U.S.-based technical downlink for intelligence satellites operated by the military, the National Security Agency and the National Reconnaissance Office.”

See “Aerospace Data Facility / Denver Security Operations Center, Buckley AFB, Colorado,” compiled by Allen Thomson, August 2008.

Senate Report Scrutinizes the State Secrets Privilege

A new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation.

The 53 page report summarizes the latest legal scholarship on the state secrets privilege, as well as the controversy that has surrounded it.

“In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage. Facing allegations of unlawful Government conduct ranging from domestic warrantless surveillance, to employment discrimination, to retaliation against whistleblowers, to torture and ‘extraordinary rendition,’ the Bush-Cheney administration has invoked the privilege in an effort to shut down civil suits against both Government officials and private parties. Courts have largely acquiesced,” the report states.

“While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, ‘[w]hat is undebatable … is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,’ and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse.”

“In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts.”

The new report includes dissenting views from several Republican members of the Judiciary Committee, who argue that the existing arrangements already strike the “right balance between openness, justice and national security.” See “State Secrets Protection Act,” Senate Judiciary Committee Report 110-442, August 1.

Another new report from the Senate Judiciary Committee addresses court-ordered secrecy, and would limit judicial authority to seal court records pertaining to public health and safety. The report describes pending legislation that “requires judges to consider the public’s interest in disclosure of health and safety information before issuing a protective order or an order to seal court records or a settlement agreement.” See “Sunshine in Litigation Act,” Senate Judiciary Committee Report 110-439, August 1.

DNI Issues Directive on IC Chief Information Officer

The Director of National Intelligence last week issued a new directive (pdf) defining the role of the Chief Information Officer (CIO) for the U.S. intelligence community (IC).

The CIO will be responsible for “developing, maintaining, and facilitating the implementation of a sound and integrated information technology architecture for the IC” and will also “oversee IC information security policies.”

See Intelligence Community Directive 500, “Chief Information Officer,” August 7, 2008.

DIA Takes on Offensive Counterintelligence

With the establishment of its Defense Counterintelligence and Human Intelligence Center (DCHC) on August 3, the Defense Intelligence Agency now has new authority to engage in offensive counterintelligence operations that seek to thwart foreign intelligence activities.

If defensive counterintelligence is checkers, then offensive counterintelligence is chess.

Unlike defensive counterintelligence, offensive counterintelligence is intended to “make something happen,” a DIA spokesman said last week (pdf). It may involve infiltration, active deception and disruption of opposing intelligence services. It is hard to do well.

“DIA joins just three other military organizations authorized to carry out offensive counterintelligence operations–the Army Counterintelligence office, the Navy Criminal Investigative Serve and the Air Force office of Special Investigations,” reported Pamela Hess of the Associated Press. See “DIA’s New Mission Adds to Intel Arsenal,” August 5.

The Defense Intelligence Agency described at length the origins and intended functions of the new DCHC in a news media briefing last week. The transcript is here.

CRS Reports Are Still Out of Bounds

When a military judge ruled last month that Salim Ahmed Hamdan, a former driver for Osama bin Laden, could be tried for war crimes, the first footnote in his July 14 opinion (pdf) was to a Congressional Research Service report. (Hamdan was convicted yesterday for material support of terrorism.)

But Military Judge Keith J. Allred, lacking an official source for the CRS analysis by Jennifer K. Elsea (with which he ultimately differed), provided a link instead (see footnote 1 on page 3) to a copy of the document on the Federation of American Scientists web site.

By doing so, the Judge simultaneously highlighted the centrality of such CRS analyses to public discourse and the strange fact that these official documents are still not approved for direct release to the public.

Perhaps he also implicitly affirmed that FAS and other public interest publishers of CRS collections are helping to compensate for that continuing policy defect by providing the online access to CRS reports that Congress has denied.

A Look at the Secret Service, and More from CRS

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

“The U.S. Secret Service: An Examination and Analysis of Its Evolving Missions,” July 31, 2008.

“Terrorism and Security Issues Facing the Water Infrastructure Sector,” updated July 28, 2008.

“FY2009 National Defense Authorization Act: Selected Military Personnel Policy Issues,” July 21, 2008.

“Veterans Medical Care: FY2009 Appropriations,” July 29, 2008.

“Annual Appropriations Acts: Consideration During Lame-Duck Sessions,” July 25, 2008.

Islamic Finance, and More from CRS

Other new and updated reports from the Congressional Research Service obtained by Secrecy News include these (all pdf).

“Islamic Finance: Overview and Policy Concerns,” July 29, 2008.

“Presidential Advisers’ Testimony Before Congressional Committees: An Overview,” updated July 16, 2008.

“China’s Foreign Policy: What Does It Mean for U.S. Global Interests?,” July 18, 2008.

“Navy DDG-1000 Destroyer Program: Background, Oversight Issues, and Options for Congress,” updated July 15, 2008.

“A Parliamentary-Style Question Period: Proposals and Issues for Congress,” July 29, 2008.

Retroactive Immunity, and More from CRS

Additional reports from the Congressional Research Service that are newly available online include these (all pdf):

“Department of Defense Fuel Costs in Iraq,” July 23, 2008.

“The Global Nuclear Detection Architecture: Issues for Congress,” July 16, 2008.

“Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” updated July 23, 2008.

“Intelligence Reform at the Department of Energy: Policy Issues and Organizational Alternatives,” July 28, 2008.

“Retroactive Immunity Provided by the FISA Amendments Act of 2008,” July 25, 2008.

As useful as some CRS reports are, they are rarely if ever the last word on any given subject. The new CRS report on retroactive immunity and the FISA Amendments Act, for example, does not encompass the challenging constitutional questions discussed by Glenn Greenwald in this ACLU blog entry.

Disabled Intel Satellite Restored to Operation by NRO

A U.S. intelligence satellite that had ceased to function was recently restored to operation by engineers from the National Reconnaissance Office and its industry affiliates, the NRO said.

The episode was first publicly described last month in a glossy two-page NRO brochure (pdf), which simply said: “Technical experts from both the NRO and industry recently performed extraordinary engineering on the ground that returned a non-operating satellite to full operation.” See “National Reconnaissance Office Accomplishments,” July 2008.

Secrecy News asked NRO spokesman Rick Oborn to elaborate on the statement in the promotional brochure. (“I didn’t know anyone actually read that,” he said.)

He said the action occurred around “one and a half or two months ago,” after the satellite in question had been “non-responsive for a while.”

It was a “very interesting and pretty extraordinary” turn of events and “much to everybody’s semi-surprise,” satellite operation was restored.

What kind of satellite was it? “I can’t tell you that,” he said.

When was it launched? “That would reveal too much.”

How long was the satellite non-operational? “I don’t think I’m going to tell you.” And he didn’t.

Mr. Oborn said that NRO had prepared a classified account of the matter which was circulated in the intelligence community and to Congress.

The story shows, he said, that “we’ve got some really smart people doing the job.”

NRC Proposes to Increase Openness on Security Info

Rather unexpectedly, the Nuclear Regulatory Commission is asking for public comment on whether and how it should disclose more information on the security of nuclear power plants and other facilities.

“We view nuclear regulation as the public’s business and believe it should be transacted as openly and candidly as possible,” said NRC Executive Director of Operations Bill Borchardt.

Among other things, the NRC wants to know what currently undisclosed information members of the public would like to have released: “What specific details would increase your level of satisfaction in our regulatory oversight of licensed facilities?”

The NRC published a request for comment in the Federal Register on July 29 (pdf), along with related background material (pdf).

It is practically a law of bureaucratic physics that government agencies do not spontaneously seek to become more transparent and accountable absent some significant change in personnel or other triggering event.

According to David Lochbaum, a nuclear safety engineer with the Union of Concerned Scientists, the triggering event in this case was congressional outrage at the NRC’s concealment of a major “nuclear safety event” in 2006 at the Nuclear Fuel Services plant in Erwin, Tennessee.

In that case, approximately 35 liters of highly enriched uranium solution leaked and spilled, creating the possibility of a criticality accident, i.e. an uncontrolled chain reaction. Yet “NRC failed to notify the public or Congress for 13 months regarding this serious incident,” complained Rep. John Dingell in a July 3, 2007 letter (pdf) to NRC Chairman Dale E. Klein.

“We call on NRC to make every effort to withhold from public view only those documents that contain security sensitive information, and restore to the public all other documents that have been withheld….,” Rep. Dingell wrote last year.

The current NRC request for public comment on ways to increase openness, Mr. Lochbaum told Secrecy News, “is the agency’s bureaucratic effort to extricate themselves from the hole they dug.”

In 2003 congressional testimony (pdf), Mr. Lochbaum described the NRC’s past refusal to engage with outside experts and public interest organizations on security policy.

“The net effect of the agency’s actions is to exclude the public from intervening on security issues in specific licensing cases and also to exclude the public from participating, even in the limited capacity of merely expressing concerns, in security policy discussions,” Mr. Lochbaum testified at that time.