Posts from September, 2012

Drones in the National Airspace System, and More from CRS

New reports from the Congressional Research Service that have not been made available to the public include the following.

Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System, September 10, 2012

Global Access to Clean Drinking Water and Sanitation: U.S. and International Programs, September 10, 2012

Automobile and Truck Fuel Economy (CAFE) and Greenhouse Gas Standards, September 11, 2012

Overview of the Federal Procurement Process and Resources, September 11, 2012

Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues, September 10, 2012

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program, September 10, 2012

Arizona v. United States: A Limited Role for States in Immigration Enforcement, September 10, 2012

Authority of State and Local Police to Enforce Federal Immigration Law, updated September 10, 2012

Intelligence, Surveillance, and Reconnaissance (ISR) Acquisition: Issues for Congress, updated September 10, 2012

The latter report on ISR acquisition was co-authored by veteran CRS specialist Richard F. Grimmett.  On Monday, Sen. Richard Lugar paid tribute on the Senate floor to Mr. Grimmett, who is retiring at the end of the month.

Legality of Targeted Killing of Suspected Terrorists Reviewed by CRS

The legality of targeted killing of suspected terrorists, including U.S. citizens, was examined in a memorandum prepared for members of Congress by the Congressional Research Service.

The U.S. practice of targeted killing raises complex legal issues because it cuts across several overlapping legal domains.  To the extent that the U.S. is actually at war with the targeted persons, the “law of armed conflict” would provide the appropriate legal framework, though the relevance of this framework far from a “hot battlefield” is disputed.  Outside of armed conflict, the U.S. could be acting under the related but distinct laws of “self-defense.”  The use of lethal force in law enforcement operations offers another way of conceiving of and evaluating anti-terrorist strikes.  In all cases, the sovereignty of the nation where the strike occurs adds a further layer of legal complexity.  With respect to targets who are U.S. citizens, the applicability of the U.S. Constitution is yet another urgent issue.

Obama Administration officials have discussed targeted killing in several public speeches since 2010, but have evaded detailed public questioning on the subject.  The Justice Department Office of Legal Counsel has prepared a memorandum on the targeting of suspected terrorists who are U.S. citizens, as reported by the New York Times, but it has refused to release the OLC memorandum or even to publicly acknowledge that it exists.  Meanwhile, Congress has been largely silent and acquiescent.

The CRS memorandum, entitled “Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities,” was prepared in May 2012 by legislative attorney Jennifer K. Elsea.  It presents an overview of the pertinent legal context, and then carefully parses official Administration statements in an attempt to infer a detailed legal rationale for lethal targeting.  A copy was obtained by Secrecy News.

“This memorandum is an effort to clarify the debate by providing legal background, setting forth what is known about the Administration’s position and identifying possible points of contention among legal experts and other observers,” the memo states.

In the end, CRS concludes that none of the established legal frameworks is a perfect fit for the Administration’s lethal targeting operations because the current U.S. practice of lethal targeting involves features that are improvised, inconsistent or otherwise questionable.

For example, CRS says the Administration appears to have redefined the meaning of “imminence,” one of the required elements for justifying the use of force in self-defense on the territory of another country.  The standard definition of imminence refers to an overwhelming threat that allows “no moment for deliberation.”  But the Administration uses imminence idiosyncratically “to refer to the window of opportunity for striking rather than the perceived immediacy of the threat of an armed attack.”  This novel usage “may pose some challenge to the international law regarding the use of force,” CRS said.

The CRS memo notes that the U.S. Supreme Court has ruled — in Hamdi v. Rumsfeld — that when a U.S. citizen is detained as a suspected enemy combatant he must be given notice of the factual basis for his detention and an opportunity to rebut it.  Yet, in contrast, when a citizen-suspect is to be killed rather than detained the Administration’s position is that no such notice or opportunity is required.

This embrace of unchecked executive authority may prove difficult to reconcile with the majority holding in Hamdi, the memo suggests.

In fact, CRS says, the Administration’s position “seems to conform more with Justice Thomas’s dissenting opinion in Hamdi, in which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, ‘due process requires nothing more than a good-faith executive determination’.”

By withholding its own Office of Legal Counsel opinion on the legality of lethal targeting of suspected terrorists who are U.S. citizens, the Obama Administration seems intent not on protecting sensitive operational details but on suppressing public awareness and debate.  The CRS memo is not a substitute for the OLC opinion, but it nonetheless can serve to advance public understanding of the underlying issues.

Pentagon Says It Does Not Conduct Surveillance of Journalists

“The Department of Defense does not conduct electronic or physical surveillance of journalists” as a way of preventing leaks of classified information, Pentagon press spokesman George E. Little wrote last week.

But Department officials do “review media reports for possible unauthorized disclosure of classified information,” he said.

Mr. Little was responding to a July 20 letter from leaders of the Pentagon Press Association, who questioned the nature of DoD’s intention to “monitor all major, national level reporting” for evidence of leaks.  (“Reporters Seek Clarification of Pentagon Anti-Leak Policy,” Secrecy News, July 23, 2012)

“The Secretary and Chairman [of the Joint Chiefs] both believe strongly in freedom of the press and encourage good relations between the Department and the press corps,” Mr. Little wrote in his letter, which was first reported in Politico. “Their efforts to stop the unauthorized disclosures of classified information do not involve restricting press access to DoD officials.”

The Purple Heart, and More from CRS

New reports from the Congressional Research Service that have not been made publicly available include the following.

The Purple Heart: Background and Issues for Congress, September 7, 2012

The National Labor Relations Act: Background and Selected Topics, September 7, 2012

Federal Public Transportation Program: An Overview, September 6, 2012

Unemployment Compensation (UC): Eligibility for Students Under State and Federal Laws, September 7, 2012

The Senior Executive Service: Background and Options for Reform, updated September 6, 2012

Records of 1940 Katyn Massacre Declassified

The National Archives announced that it has declassified over a thousand pages of records pertaining to the 1940 massacre of thousands of Polish Army officers and intellectuals in the Katyn Forest in the Soviet Union.

The Katyn massacre has been a subject of intense interest and controversy in Poland, as well as a perennial irritant in Polish-Russian relations.  The question of US knowledge of the massacre, and the possibility of a US coverup designed to protect the World War II alliance with the Soviet Union, has been a topic of speculation in the Polish press which some Polish observers hoped might be confirmed by the newly declassified records.

Drones in Domestic Surveillance Operations, and More from CRS

“The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues,” says a new report on the subject from the Congressional Research Service.

“This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court’s determination of the reasonableness of drone surveillance would likely be informed by location of the search, the sophistication of the technology used, and society’s conception of privacy in an age of rapid technological advancement.”

“While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places and perhaps even less in areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people’s expectations of privacy evolve.”

The new report reviews the relevant Fourth Amendment landscape, the current status of drone technology and applications, and pending legislation on the subject. A copy was obtained by Secrecy News.  See Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, September 6, 2012.

Other noteworthy new CRS reports that Congress has declined to make publicly available include the following.

The “Fiscal Cliff”: Macroeconomic Consequences of Tax Increases and Spending Cuts, September 5, 2012

The War Powers Resolution: After Thirty-Eight Years, September 5, 2012

Stafford Act Declarations 1953-2011: Trends and Analyses, and Implications for Congress, August 31, 2012

NFIB v. Sebelius: Constitutionality of the Individual Mandate, September 3, 2012

Search and Seizure Cases in the October 2012 Term of the Supreme Court, September 4, 2012

Greater Autonomy for Unmanned Military Systems Urged

The Department of Defense should focus on increasing the autonomy of drones and other unmanned military systems, a new report from the Defense Science Board said.

DoD should “more aggressively use autonomy in military missions,” the Board report said, because currently “autonomy technology is being underutilized.”  See “The Role of Autonomy in DoD Systems,” Defense Science Board, dated July 2012 and released last week.

“Autonomy” in this context does not mean “computers making independent decisions and taking uncontrolled action.”  The Board is not calling for the immediate development of Skynet at this time.  Rather, autonomy refers to the automation of a particular function within programmed limits.  “It should be made clear that all autonomous systems are supervised by human operators at some level,” the report stressed.

Increased autonomy for unmanned military systems “can enable humans to delegate those tasks that are more effectively done by computer… thus freeing humans to focus on more complex decision making.”

“However, the true value of these systems is not to provide a direct human replacement, but rather to extend and complement human capability by providing potentially unlimited persistent capabilities, reducing human exposure to life threatening tasks, and with proper design, reducing the high cognitive load currently placed on operators/supervisors.”

But all of that is easier said than done.

“Current designs of autonomous systems, and current design methods for increasing autonomy, can create brittle platforms” that are subject to irreversible error.  There are also “new failure paths associated with more autonomous platforms, which has been seen in friendly fire fatalities…. This brittleness, which is resident in many current designs, has severely retarded the potential benefits that could be obtained by using advances in autonomy.”

The Defense Science Board report discusses the institutional challenges confronting a move toward increasing autonomy, including the obstacles posed by proprietary software.  It offers an extended discussion of conflict scenarios in which the enemy employs its own autonomous systems against U.S. forces.  The authors describe China’s “alarming” investment in unmanned systems, and encourage particular attention to the relatively neglected topic of the vulnerability of unmanned systems.

The report includes some intriguing citations, such as a volume on “Governing Lethal Behavior in Autonomous Robots,” and presents numerous incidental observations of interest.  For example:

“Big data has evolved as a major problem at the National Geospatial Intelligence Agency (NGA).  Over 25 million minutes of full motion video are stored at NGA.”

But new sensors will produce “exponentially more data” than full motion video, and will overwhelm current analytical capabilities.

“Today nineteen analysts are required per UAV orbit [i.e. per 24 hour operational cycle].  With the advent of Gorgon Stare, ARGUS, and other Broad Area Sensors, up to 2,000 analysts will be required per orbit.”

The government “can’t hire enough analysts or buy enough equipment to close these gaps.”

New Army Doctrinal Publications on Intelligence, Special Ops

The U.S. Army has recently begun publishing two new series of Army Doctrine Publications (ADP) and Army Doctrine Reference Publications (ADRP).

These publications generally offer a digest of existing doctrine in introductory form for broad consumption, with limited modifications and a few updates.  Last week, the Army issued new unclassified publications on intelligence and special operations, among other topics.

Trans-Pacific Partnership Negotiations, and More from CRS

New and updated reports from the Congressional Research Service that Congress has chosen not to make available to the public include the following.

The Trans-Pacific Partnership Negotiations and Issues for Congress, September 5, 2012

Weather-Related Power Outages and Electric System Resiliency, August 28, 2012

SBA Veterans Assistance Programs: An Analysis of Contemporary Issues, September 4, 2012

Worker Adjustment and Retraining Notification (WARN) Act, September 4, 2012

Immigration Detainers: Legal Issues, August 31, 2012

Tajikistan: Recent Developments and U.S. Interests, updated August 31, 2012

Defense: FY2013 Authorization and Appropriations, updated September 5, 2012

US-Israel Military Exercises Spawn Mixed Messages

Updated below

Throughout much of this year, the U.S. military has been conducting joint military exercises with Israel or planning such exercises.  A descriptive listing of 2012 U.S. exercises with Israel bearing codenames like NOBLE MELINDA and RELIANT MERMAID was recently published in a House Armed Services Committee hearing volume on the FY2013 budget request for U.S. European Command (EUCOM).  The listing was current as of March 2012; the schedule has shifted somewhat since then.

Whatever their intrinsic military value may be, the exercises also serve a messaging function.  They constitute signals to internal and external audiences concerning the state of the U.S.-Israel alliance.

The “robust bilateral and multilateral military exercise program offers the Israel Defense Forces strong reassurances of the United States’ strong commitment to the security of Israel,” said Adm. James G. Stavridis, the EUCOM Commander.

However, the specific content of the messages being sent by the exercises is sometimes ambiguous and subject to contrasting, divergent interpretations.

Time Magazine reported on Friday that the pending exercise known as AUSTERE CHALLENGE was going to be reduced in scale.  The downsizing of the exercise was perceived by some as an effort to discourage any unilateral Israeli attack on Iran as well as a signal of a U.S. loss of confidence in Israel. “Basically what the Americans are saying is, ‘We don’t trust you’,” an Israeli official told Time.  (“U.S. Scales-Back Military Exercise with Israel, Affecting Potential Iran Strike” by Karl Vick and Aaron J. Klein, August 31.)

But the New York Times reported Sunday that pending military exercises were meant to reassure Israel, to strengthen military pressure against Iran and to reduce incentives for unilateral action.  (“To Calm Israel, U.S. Offers Ways to Restrain Iran” by David E. Sanger and Eric Schmitt, September 2.)

In the newly published responses to questions for the record from the House Armed Services Committee, US EUCOM Commander Adm. Stavridis disputed the assertion by Rep. Robert J. Wittman (R-VA) that threats to Israel had “increased in the last year.”

“While Israel is certainly in a volatile region of the world, I would argue that the threats to Israel have not increased in the last year,” Adm. Stavridis wrote.

“If you take the broad view of the history of the modern state of Israel, it is certainly more secure now that it was in 1948, 1967, 1973, or even during the First or Second Intifadas. Israel currently has signed peace treaties with two of its four neighbors. A third neighbor, Syria, is currently undergoing a period of serious internal unrest and is in no position to threaten Israel militarily. The terrorist threat posed by Lebanese Hezbollah from within the fourth neighbor has been deterred from overt attacks since the war in 2006. Moreover, the Palestinian leader Mahmoud Abbas has renounced violence. Unrest in the West Bank has subsided significantly over the last few years,” Adm. Stavridis wrote.

Update: The Department of Defense responded to the Time Magazine story about AUSTERE CHALLENGE at a September 4 news briefing:

“Austere Challenge 12 is a bilateral ballistic missile defense exercise between the United States and Israel that provides important training for the defense of both nations. The exercise was originally scheduled for May. However, at the request of the Israeli Ministry of Defense and Israeli Defense Forces, the exercise was moved — was moved to late fall of this year. That decision was addressed by Secretary Panetta from this podium in January, as well as others, including me, in subsequent media briefings.”

“When the exercise was moved, the United States notified Israel that, due to concurrent operations, the United States would provide a smaller number of personnel than originally planned, and Israel reiterated its request to postpone the exercise until late fall. The fact of the matter is that this exercise remains the largest ever ballistic missile defense exercise between our nations and a significant increase from the previous exercise a few years ago. The exercise has not changed in scope and will include the same types of systems as planned. All deployed systems will be fully operational with their associated operators, including the missile interceptors.”

“As Minister of Defense Ehud Barak has repeatedly said, the U.S.-Israel defense relationship is stronger than it has ever been, and we couldn’t agree more. This exercise is a tangible sign of our mutual trust and our shared commitment to the defense of our two nations.”