Posts from January, 2009

OLC Says LBJ Memo Critical of Polygraph is Non-Binding

The outgoing head of the Bush Administration Office of Legal Counsel took the time to issue an opinion (pdf) last week stating that a forty-year-old memorandum issued by President Lyndon B. Johnson limiting use of polygraph tests is not binding on executive branch agencies today.

The Johnson memorandum had stated that in order “to prevent unwarranted intrusions into the privacy of individuals[,]… use of the polygraph is prohibited” in the Executive Branch, with three “limited exceptions.”

But in a 12-page OLC opinion dated January 14, 2009, Steven G. Bradbury concluded that the Johnson memo was never formally issued, that it was contradicted by subsequent actions and that in any event it is not binding on executive branch agencies today.

The OLC memo was previously noted by polygraph critic George Maschke of, who also posted a copy of the LBJ memo on polygraph testing.

Feingold: New FISA Court Ruling Based on Incomplete Record

When it upheld the constitutionality of warrantless intelligence surveillance under certain very particular circumstances in a ruling (pdf) that was disclosed last week, the Foreign Intelligence Surveillance Court of Review was acting on an incomplete factual record that may have skewed its decision, according to Senator Russ Feingold (D-WI).

“It is my view that the Court’s analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government’s implementation of the law, about which I have repeatedly raised concerns in classified settings,” Sen. Feingold said.

The new decision “placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.”  The court therefore ruled “without the benefit of an effective adversarial process,” he said in a January 16 statement.

In any case, Sen. Feingold stressed, the new decision “in no way validates or bolsters the president’s illegal warrantless wiretapping program.  The decision, which only addressed surveillance authorized by the Protect American Act (PAA) enacted in August 2007, did not support the President’s claim of constitutional authority to violate the law.  Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act’s application in this particular case.”

While narrowly limited in scope to the specific, never-to-be-repeated circumstances of this case, the new ruling explicitly states for the first time that there is a foreign intelligence exception to the Fourth Amendment:  “[W]e hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” [at page 17]  (More from Emptywheel, Glenn Greenwald, Volokh.)

Iran’s Testing of Russian Shkval Torpedo Documented

The Russian Shkval torpedo was tested for Iranian naval officials in 2004 and the resulting data were described in several newly disclosed Persian-language documents.

Iran’s own Hoot torpedo is evidently derived from the Shkval.  Both are high-speed, supercavitating anti-ship missiles.

Some of the newly disclosed Iranian documents, which include Shkval technical specifications and test performance data as well as Hoot production records, are marked “khayli mahramaneh” or “very confidential,” the third of four classification levels used in Iran.  The documents have not been approved for public release, but copies were obtained by Secrecy News.

Presidential Pardoning Power, and More from CRS

The President of the United States has broad and essentially unfettered authority to issue pardons for offenses against the United States, a new Congressional Research Service report on the subject explains.

“It also appears that a pardon may be revoked at any time prior to acceptance or delivery” of the warrant of pardon, according to the CRS assessment, which finds no flaw in the recent decision by President Bush “not to execute” a previously announced pardon in the case of real estate developer Isaac R. Toussie.  See “An Overview of the Presidential Pardoning Power” (pdf), January 7, 2009.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

“Nuclear Weapons in U.S. National Security Policy: Past, Present, and Prospects,” updated December 30, 2008.

“Nuclear Arms Control: The Strategic Offensive Reductions Treaty,” updated December 30, 2008.

“Organizing the U.S. Government for National Security: Overview of the Interagency Reform Debates,” updated December 16, 2008.

“Iran’s Nuclear Program: Tehran’s Compliance with International Obligations,” December 4, 2008.

“U.S. Military Stop Loss Program,” January 8, 2009.

“Department of Defense Facilities Energy Conservation Policies and Spending,” December 31, 2008.

“Congressional Commissions: Overview, Structure, and Legislative Considerations,” December 19, 2008.

“Terrorism and Security Issues Facing the Water Infrastructure Sector,” updated November 17, 2008.

“Covert Action: Legislative Background and Possible Policy Questions,” updated December 1, 2008.

New Guidelines Define NCTC Access to Non-Terror Databases

The National Counterterrorism Center (NCTC), a component of the Office of the Director of National Intelligence, may obtain access to federal databases containing non-terrorism-related information in order to acquire information needed for authorized counterterrorism purposes, pursuant to a recent memorandum of agreement (pdf) between the Director of National Intelligence and the Attorney General.

“NCTC will access information in such datasets identified as containing non-terrorism information… only to determine if the dataset [also] contains terrorism information,” the memorandum states.

“NCTC is not otherwise permitted under these guidelines to query, use, or exploit such datasets (e.g., analysts may not ‘browse’ through records in the dataset that do not match a query with terrorism datapoints, or conduct ‘pattern-based’ queries or analyses without terrorism datapoints),” the memo directs.

The seven-page Memorandum of Agreement has not been approved for public release, but a copy was obtained by Secrecy News.  It took effect on November 4, 2008.

“Most of the terrorists arrested in the U.S. have supported themselves with common criminal activities” and therefore NCTC would have a legitimate need for access to related law enforcement information, a senior intelligence official from another agency told Secrecy News.

The new memo “regularizes the process by which NCTC can access information not originally collected for intelligence purposes,” the official said.  It also “inserts the ODNI Civil Liberties Protection Officer into the process with an affirmative role for the first time — I think.”

The memorandum makes the ODNI Civil Liberties Protection Officer responsible for ensuring that NCTC complies with privacy guidelines when accessing non-terrorism-related databases.

Basic Failures Abound in Classification Program

“At a time where we would expect to find increasing stability in the [national security classification] program, we are instead finding failure with the implementation of basic requirements,” wrote William J. Bosanko, director of the Information Security Oversight Office (ISOO), in the latest ISOO annual report to the President (pdf).

Out of more than 1,000 classified documents examined by ISOO last year, “the appropriateness of classification was subject to question in over 25 percent,” Mr. Bosanko reported.  See the FY 2008 ISOO Report to the President, transmitted January 12, 2009.

In what may be the report’s most significant finding, ISOO discovered that the majority of classification guides used by government agencies to prescribe exactly what information should be classified at what level are badly out of date.

“Overall, 67 percent of the guides agencies reported as being currently in use had not been updated within the past five years,” the ISOO report said.  In effect, agencies are continuing to impose outdated classification restrictions on newly generated information.

This finding underscores the utility of, and the need for, an agency-by-agency “scrub” of all classification guides in order to eliminate obsolete classification practices.  (For more on this approach, see “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

The new ISOO report also had some favorable news.  The number of original classification authorities (who are authorized to designate new information as classified) declined slightly.  The number of original classification decisions — new secrets — dropped by 13 percent.  For the fourth year in a row, a majority of new classification actions were assigned a declassification date of ten years or less.  The number of classification challenges within the executive branch disputing the classification status of certain information rose to 436 formal challenges from 275 the year before.  The ISCAP, which reviews appeals of declassification requests that have been denied, declassified a greater percentage of information than in past years.

But in general, declassification languished.  “The overall number of pages reviewed and pages declassified by Executive branch agencies has declined significantly from previous years.”  And it is unlikely that agencies will meet a December 31, 2009 deadline for automatic declassification of 25 year old records that contain multiple agencies equities (or interests), the ISOO report said.

In the end, the classification system can only work as well as government officials want it to work, the ISOO report concluded.

“Ultimately, the success or failure [of agency classification policies] depends on the commitment of the agency heads and senior agency officials to the classified national security information program established by the President,” ISOO said.

ODNI Denies Release of 2006 Intelligence Budget Figure

The Office of the Director of National Intelligence today denied a request to release the size of the 2006 National Intelligence Program budget.

The size of the 2007 budget (pdf) for the National Intelligence Program has been formally declassified and released ($43.5 billion).  And so has the figure for the 2008 budget ($47.5 billion).

But “the size of the National Intelligence Program for Fiscal Year 2006 remains currently and properly classified pursuant to Executive Order 12958, as amended,” wrote Lt. Gen. Ronald L. Burgess, Jr. (pdf), director of the ODNI Intelligence Staff.

“In addition, the release of this information would reveal sensitive intelligence sources and methods,” he wrote.

Bush Directive on Arctic Policy Stresses U.S. Sovereignty

Though many Americans might not realize it, “The United States is an Arctic nation,” President Bush declared this week, “with varied and compelling interests in that region.”

U.S. policy towards the Arctic region, which includes a portion of Alaska, was vigorously formulated in what is likely to be the Bush Administration’s last National Security Presidential Directive, NSPD-66 on Arctic Region Policy, dated January 9, 2009.

In the face of conflicting claims by the government of Canada, the directive asserts “lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region.”

Noting that the U.S. and Canada “have an unresolved boundary in the Beaufort Sea” (which “may contain oil, natural gas, and other resources”), the President directed U.S. agency heads to “take all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law.”

In the Canadian press, the new directive was described as a “forceful rebuttal of Canada’s claims of sovereignty over the Northwest Passage.”  See “Bush takes final swing at Arctic sovereignty,” National Post, January 12.

President Bush called on the U.S. Senate to ratify the Law of the Sea Treaty, which is opposed by some Senate Republicans, because, he said, it offers “the most effective way to achieve international recognition and legal certainty for our extended continental shelf.”

Although many National Security Presidential Directives are classified, and the subject matter of some of them is still completely unknown to the public, NSPD-66 was issued as an unclassified, public document.  A listing of all publicly known NSPDs is here.  A Congressional Research Service report on “Presidential Directives: Background and Overview,” updated November 26, 2008, is here (pdf).

Current, Future Justice Officials Clash Over OLC Proposal

In a revealing conflict of views between outgoing and incoming Justice Department officials, Attorney General Michael Mukasey recently told Congress that a proposal that was conceived by Prof. Dawn Johnsen to require expanded reporting to Congress concerning Justice Department Office of Legal Counsel (OLC) opinions is unconstitutional.  Prof. Johnsen has been designated by President-elect Obama as the new OLC head.

The dispute concerned “The OLC Reporting Act of 2008″ (S.3501) that was introduced by Sen. Russ Feingold last September.

“The bill would require the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a statute,” Sen. Feingold explained last year.  Currently, no such notification to Congress is required, and the executive branch may silently interpret a seemingly straightforward statute as non-binding.

The Feingold bill emerged from a suggestion offered by Prof. Johnsen at an April 30, 2008 hearing on “Secret Law.”

The OLC Reporting Act, which would not require disclosure of the actual legal opinions, “strikes a sensible and constitutionally sound balance between the executive branch’s need to have access to candid legal advice… and the legislative branch’s need to know the manner in which its laws are interpreted,” Prof. Johnsen wrote in a September 15 letter with former Bush White House Associate Counsel Brad Berenson.

It’s not constitutionally sound at all, objected Attorney General Mukasey in a November 14 letter (pdf) to Congress that was disclosed this week.  The bill is unconstitutional because it improperly seeks to mandate the timing and extent of disclosure of classified information, and because it infringes on the constitutional doctrine of executive privilege, he said.

The legislation would require that Congress be notified of “many legal opinions” that fall within its terms, the Attorney General wrote.  And it would mistakenly lead legal advisers to tailor their advice in such a way as not to trigger the reporting requirements of the Act, he warned.

Accordingly, Attorney General Mukasey said, “the Department strongly opposes this legislation, and if it were presented to the President, his senior advisers would recommend that he veto it.”

But the Department’s strong opposition to the bill is likely to fade very soon, considering that one of the new President’s “senior advisers” is also one of the bill’s authors.

U.S. Spending on Nuclear Weapons Exceeds $52 Billion

Most U.S. Government spending on nuclear weapons-related programs is unclassified.  But it is functionally secret since such spending is widely dispersed across many programs in several agencies and it is not formally tracked or reported.

A new study prepared for the Carnegie Endowment for International Peace estimated that the cost of U.S. nuclear weapons and weapons-related programs exceeded $52 billion last year.

“That’s a floor, not a ceiling,” said Stephen I. Schwartz, who led the study with Deepti Choubey. The estimate does not include the costs of classified nuclear weapons programs or nuclear-related intelligence programs, among other limiting factors.

The $52 billion figure far exceeds the total annual budget for international diplomacy and foreign assistance ($39.5 billion) and comprises roughly 10% of all national defense spending.

Because nuclear weapons costs are not officially tracked, it has been difficult or impossible to perform “cost-benefit” analyses of nuclear policies or to debate priorities among competing nuclear weapons programs.  Yet such priorities naturally emerge, undebated.

Thus, the majority of nuclear weapons spending (55.5%) is allocated towards upgrading, operating and sustaining the U.S. nuclear arsenal.  A much smaller fraction (10%) is devoted to controlling the spread of nuclear weapons and technology, the study found.

“The disparity suggests that preserving and enhancing nuclear forces is far more important than preventing nuclear proliferation,” said Mr. Schwartz.

The authors urge that a formal accounting of nuclear weapons spending be conducted by the government and reported to Congress and the public in order to provide greater clarity.  And they recommend that an increased fraction of nuclear security spending be directed towards preventing nuclear proliferation.

The full report and the underlying data are available from the Carnegie Endowment.  See “Nuclear Security Spending: Assessing Costs, Examining Priorities,” by Stephen I. Schwartz with Deepti Choubey, January 2009.