British Parliament Report Criticizes Government Refusal to Participate in Nuclear Deterrent Inquiry

Although the British government has promised a full and open public debate about the future of Britain’s nuclear deterrent, it has so far failed to explain what decisions need to be made, failed to provide a timetable for those decisions, and has refused to participate in a House of Commons Defence Committee inquiry on the future of Britain’s nuclear deterrent, according to a British parliamentary report. The report partially relies on research conducted by the FAS Nuclear Information Project for the SIPRI Yearbook.

Online overview of British nuclear forces

Breakdown of Federal Funding for Biodefense 2001-2007

The Center for Arms Control and Non-Proliferation has released their analysis of US Federal Spending on Biodefense from 2001-2007.

The numbers are staggering: Since 2001 the U.S. government has spent or allocated over $36 billion among 11 federal departments and agencies on biodefense. The Bush Administration has proposed $8 billion in biodefense spending for FY ’07, approximately $120 million (or 1.5%) over the ’06 appropriation. Of particular interest was that only 2% of all federal biodefense funding has been devoted to efforts to prevent the development, acquisition, and use of biological weapons by other nations and terrorists.

You can view their analysis here or download it as a PDF

BARDA: House vs. Senate

Earlier this month, Representative Mike Rogers (R-MI) submitted the House version (H.R.5533) of the `Biodefense and Pandemic Vaccine and Drug Development Act of 2006′ (BARDA). The bill was introduced in the Senate by Senator Richard Burr (R-NC) (S.2564). The two bills are essentially the same with the exception of two controversial sections included in the Senate, but not the House version. Section 5: Orphan Drug Market Exclusivity for Countermeasures Products and Section 7: Collaboration and Coordination.

The Market Exclusivity section Amends the Federal Food, Drug, and Cosmetic Act to extend the period of market exclusivity from seven years to ten years for certain new drugs, antibiotics, or anti-infective drugs to treat a rare disease or condition caused by a biological agent, toxin, chemical, radiological, or nuclear agent that is deemed by the Secretary to be a material threat to the United States.

The Collaboration and Coordination section provides an antitrust exemption for: (1) meetings and consultations held by the Secretary among persons engaged in the development of countermeasures or pandemic or epidemic products; and (2) agreements resulting from such meetings.

See the extended entry for the full text of Sections 5 and 7.

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“SEALED v. SEALED”: How Courts Confront State Secrets

The government’s increasing use of the “state secrets privilege” to resist civil litigation on national security matters has often been met by courts with uncritical, even abject deference to the executive agencies that invoke the privilege. But another, more assertive response is possible.

“The state secrets privilege is absolute,” wrote Judge Royce C. Lamberth categorically in a newly disclosed decision (pdf) from July 2004.

In that case, former DEA agent Richard Horn alleged that his phone had been illegally wiretapped by the U.S. government when he served in Myanmar (Burma) in 1993. The government asserted the state secrets privilege and moved for dismissal.

Plaintiff Horn then proposed that the provisions of the Classified Information Procedures Act (CIPA) be adapted to permit the secure adjudication of classified information in his lawsuit, as is done in certain criminal trials such as espionage cases.

But, Judge Lamberth reasoned, “If the Court adopted CIPA,… the [state secrets] privilege would not be absolute.” So he simply dismissed the case.

Horn’s lawsuit — Horn v. Huddle, D.C. District Case No. 94-1756 — is sealed. It does not appear in the public docket of the D.C. District Courthouse. Instead, it is tagged “SEALED v. SEALED” with the annotation “Case is not available to the public.”

But a redacted copy of Judge Lamberth’s July 28, 2004 order dismissing the case was obtained by Secrecy News.

A markedly different judicial response to a state secrets claim may be emerging in a current lawsuit brought by the Electronic Frontier Foundation alleging unlawful domestic surveillance.

Instead of simply granting “absolute” deference to the government whenever it asserts the state secrets privilege, the Court admitted that there are multiple interests at stake that must somehow be reconciled:

“How can the court minimize the conflict between plaintiffs’ right to litigate this case and the government’s duty to protect state secrets?” Judge Vaughan R. Walker asked the parties in a January 20 order (pdf).

“Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise,” argued constitutional scholar Louis Fisher in a new op-ed. “It would let self-serving assertions by one of the litigants usurp the judge’s authority.” See “State Your Secrets” (pdf) by Louis Fisher, Legal Times, June 26 (reprinted with permission).

A critical view of the Bush Administration’s use of the state secrets privilege was presented in “The Bush Code of Secrecy” by Mark Follman, Salon, June 23.

Last March, the Central Intelligence Agency asserted (pdf) the state secrets privilege in a somewhat mysterious case called Jane Doe v. CIA, and moved for dismissal. Last week, Mark S. Zaid, the attorney for “Jane Doe,” asked the Court not to dismiss the case.

“The privilege has been used in this administration more than any other administration,” according to University of Texas-El Paso professor William Weaver.

“Depending on how you count it, it’s been asserted … between 19 and 21 times,” he told National Public Radio on June 19.

How Did U.S. Assess Iraqi Bioweapon Production?

One of the most vivid allegations made by the U.S. government regarding Iraqi weapons of mass destruction was the claim that Iraqi had developed mobile laboratories for the production of biological weapons. The allegation, based on reports from a source known as “Curveball,” proved to be false.

But the U.S. intelligence assessment of the supposed mobile BW labs, though erroneous, raised questions that still remain unanswered, wrote (pdf) bioweapons expert Milton Leitenberg of the University of Maryland.

According to a cryptic reference spotted by Leitenberg in the Silberman-Robb WMD Commission report, U.S. contractors performed a “replication” of the Iraqi design and found that “it works.”

The exact nature of this “replication” and whether it led to the production of actual BW agents are among several lingering questions he posed.

See “Unresolved Questions Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq” by Milton Leitenberg, June 2006.

DHS, CRS on Sensitive Security Information

“Sensitive Security Information (SSI) is information that would be detrimental to transportation security if publicly disclosed,” according to a Department of Homeland Security directive released last week under the Freedom of Information Act.

See DHS Management Directive 11056 (pdf), “Sensitive Security Information,” December 16, 2005.

Confusingly, however, SSI is also a control marking used by the Department of Agriculture to mean something quite different, observed information policy expert Harold C. Relyea of the Congressional Research Service in a new report (pdf) on classification and other information controls.

SSI “is both a concept and a control marking used by the Department of Agriculture (USDA), on the one hand, and jointly by the Transportation Security Administration (TSA) of the Department of Homeland Security as well as by the Department of Transportation, on the other hand, but with different underlying authorities, conceptualizations, and management regimes for it,” he wrote.

See “Security Classified and Controlled Information: History, Status, and Emerging Management Issues,” June 26, 2006.

While the number of different designations for “sensitive but unclassified” information has been estimated at over 60, that number approaches 100 if different agency definitions of the same designation are taken into account, according to a Justice Department official.

Facing Death: Mortuary Affairs in Joint Operations

In a somewhat gruesome but unblinking new publication (pdf) prepared for the Joint Chiefs of Staff, the U.S. military prescribes doctrine for the recovery, identification, handling and burial of deceased soldiers, enemy combatants and civilian detainees.

The violent, horrible death of combatants and non-combatants is of course a defining characteristic of war. And the strange efforts by the Bush Administration to prevent the media from photographing flag-draped coffins of soldiers killed in Iraq (until a lawsuit overturned the policy last year) did nothing to change this reality.

The new doctrinal publication anticipates that the casualties of war may be mutilated or dismembered. They may be dangerously contaminated with chemical or biological agents or radioactive materials. Mass casualties may overwhelm existing facilities, forcing improvised solutions such as mass interment.

The publication stresses the dignified treatment of the dead, and includes summary accounts of the rituals associated with Protestant, Catholic, Jewish and Muslim religious traditions. (“Other than common respect, Buddhists do not have any particular requirements concerning the handling of human remains following death.”)

See “Mortuary Affairs in Joint Operations,” Joint Publication 4-06, June 2006 (195 pages, 2.5 MB).

G-8 Summit Begins July 15 in St. Petersburg

When I filled up my compact sedan this past weekend at the Getty station near my home, at – ouch! – 3.07 a gallon, I noticed an advertisement on the pump for a Lukoil credit card. I had not paid attention to this before, but Russian oil giant Lukoil owns the Getty name, and also several other brands in the Eastern United States. Those of us who live in the Washington, DC region no doubt have noticed a number of Lukoil direct-branded service stations popping up around the area.

Russia is rolling in profits not only from oil, but also from its natural gas reserves. And there is little doubt that Russian gas as part of nailing down a global energy security policy will be at the top of President Putin’s agenda at the G-8 Summit, which starts July 15 in St. Petersburg:
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Effort Underway in European Parliament Against US Nuclear Weapons in Europe

A Written Declaration presented in the European Parliament calls for the withdrawal of US nuclear weapons from Europe by the end of 2006. The Declaration has until December 10 to gather support from at least half of the Parliament’s 732 members to be adopted and formally submitted to the US government. The initiative comes as Russia refused last week to discuss tactical nuclear weapons with the United States. Most European want the US to withdraw its remaining nuclear weapons from Europe.

Background report: U.S. Nuclear Weapons In Europe