Posts from February, 2013

Senators Ask Surveillance Court to Summarize Opinions

Several members of the Senate Intelligence Committee wrote to the Foreign Intelligence Surveillance Court this month to ask the Court to prepare summaries of classified opinions that represent significant interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.

Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the constitutionality of the FISA Amendments Act lacked the requisite legal standing to pursue their case, effectively foreclosing public oversight of intelligence surveillance through the courts.

The Senate letter, the text of which was not released, stems from an amendment to the FISA Amendments Act that was introduced by Sen. Jeff Merkley in December to promote declassification of significant Surveillance Court opinons.  The Merkley amendment was not adopted — none of the legislative proposals to increase accountability were approved — but Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work with Sen. Merkley to advance the declassification of FISC opinions.

“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute,” said Sen. Merkley at that time. “The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”

“I wish to address, if I could, what Senator Merkley said in his comments,” said Sen. Feinstein during the December 27 floor debate. “I listened carefully. What he is saying is opinions of the Foreign Intelligence Surveillance Court should, in some way, shape or form, be made public, just as opinions of the Supreme Court or any court are made available to the public. To a great extent, I find myself in agreement with that. They should be.”

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” Sen. Feinstein continued. “[...] When possible, the opinions of the Foreign Intelligence Surveillance Court should be made available to the public in declassified form. It can be done, and I think it should be done more often. If the opinion cannot be made public, hopefully a summary of the opinion can. And I have agreed with Senator Merkley to work together on this issue.”

That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark Udall, has now been sent to the FISA Court, where it awaits an official response.

Though the letter itself is a modest step, the willingness of congressional overseers to assert themselves on behalf of public accountability takes on new importance in light of yesterday’s Supreme Court decision (by a 5-4 vote) to block a constitutional challenge to the FISA Amendments Act. That decision all but closes the door to public oversight of the law’s implementation through the courts.

The Court majority insisted that judicial review of government surveillance activities is alive and well, contrary to the plaintiffs’ assertion.  It is “both legally and factually incorrect” to assert that surveillance is insulated from judicial review, stated the majority opinion written by Justice Samuel A. Alito, Jr., who cited the role of the Foreign Intelligence Surveillance Court in authorizing surveillance activities.

But ACLU attorney Jameel Jaffer said that view “seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values,” Jaffer said.

On Monday, Sen. Feinstein paid tribute to L. Christine Healey, a professional staff member of the Senate Intelligence Committee who is retiring this week.  For three decades, Ms. Healey has played an influential role in intelligence oversight as a staffer on the House and Senate intelligence committees, as well as on the 9/11 Commission.  “She has been as responsible as anyone for the passage of a string of four annual intelligence authorization bills, including the fiscal year 2013 act that was completed in December,” said Sen. Feinstein.

Ms. Healey was also credited by Sen. Feinstein as “the principal drafter of the FISA Amendments Act of 2008.”

A Profile of the 113th Congress, and More from CRS

“The average age of Members of the 113th Congress is among the highest of any Congress in recent U.S. history,” according to a new report from the Congressional Research Service.  The average age of Members of the House of Representatives is 57 years, while the average age of Senators is 62 years.

“The overwhelming majority of Members of Congress have a college education,” the CRS found. “The dominant professions of Members are public service/politics, business, and law. Most Members identify as Christians, and Protestants collectively constitute the majority religious affiliation. Roman Catholics account for the largest single religious denomination, and numerous other affiliations are represented.”

One hundred women (a record number) serve in the 113th Congress. There are 43 African American Members, and 38 Hispanic or Latino Members (a record number) serving. Thirteen Members are Asian American or Pacific Islanders. There is one Native American serving in the House. See Membership of the 113th Congress: A Profile, February 20, 2013.

Other noteworthy new and updated products of the Congressional Research Service that Congress has not made publicly available include the following.

Congressional Authority to Limit Military Operations
, February 19, 2013

Nuclear Weapons R&D Organizations in Nine Nations, February 22, 2013

Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute, February 21, 2013

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements, February 20, 2013

Border Security: Understanding Threats at U.S. Borders, February 21, 2013

NAFTA at 20: Overview and Trade Effects, February 21, 2013

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, February 22, 2013, with new material on the anticipated impact of sequestration.

Azerbaijan: Recent Developments and U.S. Interests, February 22, 2013

U.S.-Japan Economic Relations: Significance, Prospects, and Policy Options, February 20, 2013

Egypt: Background and U.S. Relations, February 26, 2013

Sequester May Slow Pentagon Response to WikiLeaks

The across-the-board budget cuts known as sequestration that are expected to take effect on March 1 could impede the government’s ability to respond to WikiLeaks and to rectify the flaws in information security that it exposed, a Pentagon official told Congress recently.

Zachary J. Lemnios, the assistant secretary of defense for research and engineering, was asked by Sen. Rob Portman (R-Ohio) to describe the “most significant” impacts on cybersecurity that could follow from the anticipated cuts to the Pentagon’s budget.

Mr. Lemnios replied that “cuts under sequestration could hurt efforts to fight cyber threats, including [...] improving the security of our classified Federal networks and addressing WikiLeaks.”

The sequester could also interfere with the Comprehensive National Cybersecurity Initiative that began under President Bush, he said, and could hold up plans to “initiat[e] continuous monitoring of unclassified networks at all Federal agencies.”

Mr. Lemnios’ response to Sen. Portman’s question for the record (which had not specifically mentioned WikiLeaks) followed a March 2012 Senate Armed Services Committee hearing on Emerging Threats and Capabilities that was published in December 2012 (at page 42).

Generally speaking, computer security within the military is a daunting problem, Mr. Lemnios told the Committee, particularly since “The Department operates over 15,000 networks and 7 million computing devices across hundreds of installations in dozens of countries around the globe.”

The challenge of cybersecurity cannot be fully described in public, said Dr. Kaigham J. Gabriel of DARPA. “The complete picture requires a discussion at the special access level.”  But he told the Committee last year that several basic points can be openly acknowledged:

“Attackers can penetrate our networks:  In just 3 days and at a cost of only $18,000, the Host-Based Security System” — the Pentagon’s baseline computer security system — “was penetrated.”

“User authentication is a weak link: 53,000 passwords were provided to teams at Defcon; within 48 hours, 38,000 were cracked.”

“The Defense supply chain is at risk: More than two-thirds of electronics in U.S. advanced fighter aircraft are fabricated in off-shore foundries.”

“Physical systems are at risk: A smartphone hundreds of miles away took control of a car’s drive system through an exploit in a wireless interface.”

“The United States continues to spend on cybersecurity with limited increase in security: The Federal Government expended billions of dollars in 2010, but the number of malicious cyber intrusions has increased.”

Though it was presumably not intentional, the WikiLeaks project galvanized government information security programs and accelerated efforts to devise “insider threat” detection mechanisms, along with intensified surveillance of classified and unclassified government computer networks.

“New classes of anomaly detection methods have been developed and are based on aggregating events across time and multiple sources to identify network and host-based behavior that might be malicious,” James S. Peery of Sandia National Laboratories told the Senate Armed Services Committee at last year’s hearing.  “These approaches and behavioral-based methods have been successful in finding previously undiscovered malware.”

“One drawback of this technology, though, is that it has a very high false positive rate,” he said.

Open Access to Scientific Research Advances

Government-sponsored scientific research published in expensive journals should become more readily accessible to the public under an initiative announced by the White House Office of Science and Technology Policy on Friday.

Federal agencies that fund at least $100 million per year in scientific research were directed by White House science advisor John Holdren to develop plans to make the results of such research publicly available free of charge within a year of original publication.

“The logic behind enhanced public access is plain,” Dr. Holdren wrote in response to a public petition on the White House web site. “We know that scientific research supported by the Federal Government spurs scientific breakthroughs and economic advances when research results are made available to innovators. Policies that mobilize these intellectual assets for re-use through broader access can accelerate scientific breakthroughs, increase innovation, and promote economic growth.”

But the benefits of open access are not the sole consideration in the new policy.  “The Administration also recognizes that publishers provide valuable services, including the coordination of peer review, that are essential for ensuring the high quality and integrity of many scholarly publications. It is critical that these services continue to be made available.”

“We wanted to strike the balance between the extraordinary public benefit of increasing public access to the results of federally-funded scientific research and the need to ensure that the valuable contributions that the scientific publishing industry provides are not lost,” Dr. Holdren wrote.

The resulting policy mandating free public access within 12 months of publication is the result of an attempt to balance those competing interests, and it too is subject to future modification “based on experience and evidence.” (WaPo, NYT)

OSTP Seeks Comment on Oversight of “Dual Use” Biological Research

Members of the public are invited to comment on the feasibility and desirability of various forms of institutional oversight at federally-funded institutions that perform research involving certain pathogens or toxins.

“Certain types of research that are conducted for legitimate purposes may also be utilized for harmful purposes. Such research is called ‘dual use research’,” said a Notice filed in the Federal Register Friday by the Office of Science and Technology Policy.

“Dual use research of concern (DURC) is a smaller subset of dual use research defined as life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security,” the OSTP Notice explained.

The term “dual use research of concern” should not be taken in a pejorative sense, OSTP said.

“Research that meets the definition of DURC often increases our understanding of the biology of pathogens and makes critical contributions to the development of new treatments and diagnostics, improvements in public health surveillance, and the enhancement of emergency preparedness and response efforts. Thus, designating research as DURC should not be seen as a negative categorization, but simply an indication that the research may warrant additional oversight in order to reduce the risks that the knowledge, information, products, or technologies generated could be used in a manner that results in harm. As a general matter, designation of research as DURC does not mean that the research should not be conducted or communicated.”

In the February 22 Federal Register Notice, OSTP posed a series of questions concerning potential oversight arrangements for dual use research of concern and solicited feedback from interested members of the public.

A New Judge for the FISA Court

Judge Claire V. Eagan of the Northern District of Oklahoma was appointed this month to the U.S. Foreign Intelligence Surveillance Court by the Chief Justice of the United States.

Her term on the FIS Court began on February 13, 2013 and will extend until May 18, 2019.  She replaces Judge Jennifer B. Coffman, who retired on January 8 before the end of her term.  Another appointment, to replace outgoing Judge John D. Bates, whose term ends tomorrow, is imminent, said Sheldon Snook, spokesman for the Court.

The FIS Court authorizes electronic surveillance and physical searches for intelligence and counterterrorism purposes. The current membership of the Court is listed here.

Judge Eagan was appointed to the federal bench by President George W. Bush in 2001.

The FIS Court has been discussed lately as a potential model for some form of judicial review of the use of drones in lethal strikes against suspected terrorists. Speaking at the February 7 confirmation hearing of John Brennan to be CIA Director, Senate Intelligence Committee chair Sen. Dianne Feinstein said her Committee would examine “the proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.”

But the application of the FISA model for authorizing intelligence surveillance to the substantially different issue of lethal targeting would not be straightforward, and may not be appropriate at all.

The notion “that federal judges ought to be assigned the task of monitoring, mediating and approving the killer instincts of our government [...] is a very bad idea,” wrote Judge James Robertson, a former FIS Court member, in the Washington Post (“Judges shouldn’t decide about drone strikes,” February 15).

Unconventional Monetary Policy, 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.

Federal Reserve: Unconventional Monetary Policy Options, February 19, 2013

Federal Assault Weapons Ban: Legal Issues, February 14, 2013

Pharmaceutical Patent Settlements: Issues in Innovation and Competitiveness, February 15, 2013

Unauthorized Aliens: Policy Options for Providing Targeted Immigration Relief, February 13, 2013

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, February 14, 2013

Japan-U.S. Relations: Issues for Congress, February 15, 2013

Exemptions for Firearms in Bankruptcy, February 15, 2013

Army Use of Drones in U.S. is Constrained, Not Prohibited

There are significant barriers to the Army’s use of unmanned aerial systems within the United States, according to a new Army manual, but they are not prohibitive or categorical.

“Legal restrictions on the use of unmanned aircraft systems in domestic operations are numerous,” the manual states.  The question arises particularly in the context of Defense Support of Civil Authorities (DSCA), refering to military assistance to government agencies in disaster response and other domestic emergencies.

“Use of DOD intelligence capabilities for DSCA missions–such as incident awareness and assessment, damage assessment, and search and rescue–requires prior Secretary of Defense approval, together with approval of both the mission and use of the exact DOD intelligence community capabilities. Certain missions require not only approval of the Secretary of Defense, but also coordination, certification, and possibly, prior approval by the Attorney General of the United States.”

As a general rule, “military forces cannot use military systems for surveillance and pursuit of individuals.”  This is precluded by the Posse Comitatus Act, as reflected in DoD Directive 5525.5.

But there is a possibility that exceptions may arise, the manual indicates.  “[Unmanned aircraft] operators cannot conduct surveillance on specifically identified U.S. persons, unless expressly approved by the Secretary of Defense, consistent with U.S. laws and regulations.”  See U.S. Army Field Manual FM 3-52, Airspace Control, February 2013 (especially Appendix G).

“Commanders decide to employ unmanned aircraft systems judiciously. Use of unmanned aircraft systems requires approval at high levels within the DOD and the FAA prior to employment in DSCA,” the manual states.

“Certain unmanned aircraft systems such as Global Hawk can operate far above normal commercial traffic while providing situation assessment to ground commanders. Intermediate systems such as the Predator have supported recent disaster operations, dramatically increasing situational awareness at the joint field office level. If available and authorized, these systems can provide near-real-time surveillance to command posts for extended periods. The approval process is not automatic.”

The Army manual asserts that the perceived risks of drone failure or accident are out of proportion to the actual documented risks.

“For example, from 2003 to 2010, small, unmanned aircraft systems flew approximately 250,000 hours with only one incident of a collision with another airspace user. However, the perception of the risk posed by small, unmanned aircraft systems was much greater.” (page A-1).

What’s the Difference Between an Executive Order and a Directive?

The Obama Administration issued policy statements this week on critical infrastructure protection and cyber security, including measures to encourage information sharing with the private sector and other steps to improve policy coordination.  Curiously, the Administration issued both an Executive order and a Presidential directive devoted to these topics.

Executive Order 13636 focuses on “Improving Critical Infrastructure Cybersecurity” while Presidential Policy Directive 21 deals more broadly with “Critical Infrastructure Security and Resilience.”

But the simultaneous release of the two types of Presidential instruction on overlapping themes raises the question:  What is the difference between an Executive Order and a Presidential Directive?

“There are probably two significant differences between an EO and a PD, at least to my understanding,” said Harold Relyea, who served for decades as a Specialist in American National Government at the Congressional Research Service.

“First, in almost all cases, for an EO to have legal effect, it must be published in the Federal Register.  This is a statutory requirement.  A PD does not have to meet this publication requirement, which means it can more readily be ‘born classified’.”

“Second,” he added, “is the matter of circulation and accountability.  EOs are circulated to general counsels or similar agency attorneys, which can be readily accomplished by FR publication.  Again, a PD may be more selectively circulated, and this is done through developed routing procedures.  Ultimately, EOs are captured not only in the FR, but also in annual volumes (Title 3) of the CFR [Code of Federal Regulations].  PDs are maintained in the files of the NSC staff and, God knows, if anywhere else!  I might also add that a form for EOs has been prescribed (in an EO); no form has been prescribed (as far as I know) for PDs.”

A CRS overview of the various types of “Presidential Directives” authored by Dr. Relyea in 2008 is available here.

The Justice Department Office of Legal Counsel wrote in a 2000 opinion that executive orders and directives are equivalent in their force and impact.  “As this Office has consistently advised, it is our opinion that there is no substantive difference in the legal effectiveness of an executive order and a presidential directive that is not styled as an executive order.”

For reasons that are not immediately clear, President Obama has issued presidential directives much less frequently than his predecessors.  The latest directive, PDD-21, is only the 21st such Obama directive.  By comparison, President George W. Bush had issued 42 directives by the first January of his second term.  President Clinton had issued 53 directives by the beginning of his second term.

North Korea’s Nuclear Weapons, and More from CRS

New and updated reports from the Congressional Research Service obtained by Secrecy News that have not been made readily available to the public include the following.

North Korea’s Nuclear Weapons: Technical Issues, February 12, 2013

Pakistan’s Nuclear Weapons: Proliferation and Security Issues, February 13, 2013

Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, February 12, 2013

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments, February 13, 2013

Child Well-Being and Noncustodial Fathers, February 12, 2013

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law and Policy, February 12, 2013

Latin America and the Caribbean: Key Issues for the 113th Congress
, February 8, 2013

U.S. Manufacturing in International Perspective, February 11, 2013