House Overwhelmingly Approves Path to Nuclear Cooperation with India.

On Wednesday, the House of Representatives passed overwhelming, 359 to 68, a bill that sets out procedures for nuclear trade with India (the link includes the House floor debate and the text of the bill, about a third of way down). It is an entirely different bill than that proposed by the White House. The White House’s suggested bill was an insult to Congress, essentially asking Congress to cede any review rights and to approve details of the nuclear deal that haven’t even been decided yet. Whatever members of Congress thought about the India-US nuclear deal, they were not going to just leave the rubber stamp on the White House steps. The House bill, H.R. 5682, clearly rebukes the President on his request for pre-approval. The ultimate details of any agreement will have to go back to Congress for approval by joint resolution.
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Two Reports Detail Halting Progress on Intel Reform

Some intriguing new details of U.S. intelligence policy were disclosed in two reports on the implementation of the Intelligence Reform Act of 2004 that were issued yesterday by the House Intelligence Committee and by the Director of National Intelligence.

Beyond broad conclusions on the status of intelligence reform, each report voiced numerous passing observations of interest, both favorable and critical.

The report of the House Intelligence Committee noted the following, for example:

“Many of the major acquisition programs at the National Reconnaissance Office, the National Security Agency, and the National Geospatial-Intelligence Agency have cost taxpayers billions of dollars in cost overruns and schedule delays.” (p. 14)

“The National Intelligence Council is… making more use of external experts from academia and think tanks to prepare certain parts of a National Intelligence Estimate.” (p. 16)

“The National Counterterrorism Center … advised that out of the universe of information available on terrorist targets, the National Counterterrorism Center, the CIA’s Counterterrorism Center and the Defense Intelligence Agency’s Joint Intelligence Task Force – Counterterrorism were all analyzing approximately the same ten percent.” (p. 17)

A newly established Analytic Resources Catalog provides “the names and other identifying information such as home agency and areas of expertise for all analysts in the Community.” (p. 19) The DNI report added that “The Catalog contains information on 17,000 IC analysts throughout the IC, including current assignment, professional experience, academic background, language ability, and other biographical information.” (DNI, p. 5)

“We are concerned that individuals with [key] skill sets are not being hired because they may not conform to current hiring policy and standards. Subcommittee members and staff heard startling accounts of very qualified applicants being turned away because their diverse backgrounds do not permit them to successfully complete the rigid and antiquated applicant processing model of a ‘Cold War’ era.” (p. 24)

“The Open Source Center is in the midst of a major acquisition for a large-scale internet exploitation capability…. So far this year, there has been a significant increase in open source entries that have been included in the President’s Daily Brief.” (p. 34)

The report also provided new information on developments in intelligence analysis, intelligence reform at the FBI, the production of the President’s Daily Brief, and more. See the full report of the House Permanent Select Committee on Intelligence Subcommittee on Oversight here.

The report of the Director of National Intelligence addressed many of the same topics, though without the criticism or frustration expressed in the House report, and with some additional details.

For example, the DNI has established what sounds like a knock-off of the JASON defense advisory group:

“One new ODNI-sponsored external outreach event is the Summer Hard Problem Initiative, a series of intensive summer studies that will bring together outside experts to address challenging analytic problems.” (p. 5)

And changes to national security classification policy in intelligence may be on the horizon:

“Several new ODNI classification policies are currently in the final stages of review, but more significant shifts may be required. If so, the DNI’s classification and declassification authorities may require strengthening. The ODNI is currently engaged with the NSC in examining the possibility of broader change.” (p. 8)

See the full DNI report here.

Seeking Reciprocity in Security Clearance Policy

Reciprocity in security clearances — meaning the acceptance by one agency of a security clearance granted by another agency, and vice versa — has been an elusive security policy goal for well over a decade. But lately it has become the subject of increased attention.

“The Director [of National Intelligence] has done little to ensure the reciprocal recognition of security clearances within the [Intelligence] Community,” the House Intelligence Committee complained in its new report (pdf).

“It def[ies] common sense… that it takes months to transfer clearances for an individual who will work in the exact same space but transfer from the National Geospatial-Intelligence Agency to the CIA,” the House report said.

A July 17 memo from the Office of Management and Budget addresses the problem of reciprocity in highly restricted “special access programs,” and provides a checklist of permitted exceptions to reciprocity.

The Department of Defense and Department of Energy have each issued new directives lately on reciprocal recognition of security clearances.

House Hearing on FOIA Policy

The Freedom of Information Act “continues to be a valuable tool for citizens to obtain information about the operation and decisions of the federal government,” the Government Accountability Office reported at a July 26 House hearing.

“Since 2002, agencies have received increasing numbers of requests and have also continued to increase the number of requests that they process. In addition, agencies continue to grant most requests in full. However, the rate of increase in pending requests is accelerating,” the GAO concluded in its testimony (pdf), which provided substantial new data on individual agency FOIA practices.

Critical assessments of FOIA policy were also presented by Patrice McDermott of and by Tonda Rush of the Sunshine in Government Initiative. Dan Metcalfe presented the viewpoint of the Department of Justice at the hearing, which also featured Senator Patrick Leahy, Sen. John Cornyn, and Rep. Brad Sherman.

See the prepared statements from “Implementing FOIA– Does the Bush Administration’s Executive Order Improve Processing?” hearing before the Subcommittee on Government Management of the House Government Reform Committee, July 26, here.

On July 24, a federal court told the National Reconnaissance Office that it could not use the “operational files” exemption to withhold its Congressional Budget Justification Book from processing under the FOIA.

But on July 25, the National Geospatial-Intelligence Agency denied a FOIA request for a copy of its Congressional Budget Justification Book. Why? Because, NGA said, it is an “operational file” that is exempt from FOIA processing. Sigh. An appeal was filed explaining that this claim has been found unlawful.

See, relatedly, “Judge: Spy satellite budget can be FOIA-ed,” by Shaun Waterman, United Press International, July 27.

DoD Manual on Technical Intelligence

The Department of Defense has published a new manual (pdf) on the conduct of “technical intelligence” operations, or TECHINT.

Technical intelligence here refers to the collection, analysis and exploitation of captured enemy materiel and documentation. TECHINT serves to maintain U.S. technological advantage on the battlefield and helps to counter adversary weapons systems and operations.

TECHINT roles and missions are described in a new inter-service manual. A copy was obtained by Secrecy News.

See “TECHINT: Multi-Service Tactics, Techniques, and Procedures for Technical Intelligence Operations,” FM 2-22.401, 9 June 2006.

Article: US National Security and Preemption

The French magazine Défense Nationale asked me to submit an article about the new U.S. National Military Strategy published by the Bush administration in March 2006 and how it relates to the so-called preemption doctrine announced by the administration in 2002. The article is included in the July 2006 issue which focuses on the nuclear deterrence debate following the announcement by French president Jacques Chiraq in January that France has adjusted its nuclear posture to target regional adversaries armed with weapons of mass destruction. The magazine is published by the Committee for National Defence Studies, an independent research institution which includes several retired generals and admirals from the French military.

Download article

Pentagon Doubles Plan For New Warheads

The Pentagon is considering acquiring up to four types of Reliable Replacement Warheads (RRW), twice as many as reported so far, according to an overview discovered by the Federation of the American Scientists on a Pentagon web site.

The Department of Energy told Congress in April that Los Alamos National Laboratory and Lawrence Livermore National Laboratory were working on “an RRW design” for completion later in 2006. The Washington Post added last month that a Senate subcommittee had added $10 million to next year’s budget to fund a design of a second RRW.

According to the new DOD overview, which looks beyond 2030, the future nuclear weapons stockpile would be made up of 4-6 different types of warheads (down from nine types today). A decision would be made mid-next decade about whether to have a mix of RRWs and existing warhead types or transition to an all RRW-stockpile.

In an apparent response to the Bush administration’s decision to reduce reliance of reserve warheads and instead transition to a “responsive infrastructure” that will produce warheads when needed, the DOD plan envisions “steady-state production of warheads for deployment” in the long term.

The plan also forecasts decisions on developments of warheads for the next generation of nuclear weapon delivery systems (missiles and aircraft).

The U.S. nuclear stockpile currently contains approximately 10,000 nuclear warheads of nine principle designs: B61, W62, W76, W78, W80, B83, W84, W87 and W88. The Bush administration has decided to reduce the total stockpile “almost in half” which is estimated to leave a stockpile of some 6,000 warheads in 2012.

Visit the Pentagon web site.

FAS Wins FOIA Lawsuit Over NRO Budget Documents

In a rare victory for public access to intelligence agency records, a federal court yesterday ordered (pdf) the National Reconnaissance Office (NRO) to process its FY 2006 budget request for release under the Freedom of Information Act.

Judge Reggie B. Walton of the D.C. District Court granted a motion filed by the Federation of American Scientists to compel the NRO to comply with the FOIA.

FAS had requested disclosure of unclassified portions of the NRO budget request. Such records have been released to FAS in the past.

But the NRO, the agency which develops U.S. intelligence satellites, rejected the request with the novel claim that the budget documents were exempt from the FOIA under the exemption for highly sensitive “operational files.”

Operational files at the NRO are those records that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.” Such files are exempt from search and review under the FOIA pursuant to 50 U.S.C. 432a.

Similar operational file exemptions to the FOIA are held by other intelligence agencies including CIA, NSA, NGA, and DIA. Never before had any agency (including NRO) denied a request for budget records by claiming that they were “operational.”

If the operational file exemption were permitted to cover routine administrative documents such as budget records, then an enormous swath of unclassified government records could be unilaterally removed from the reach of the FOIA simply by designating them “operational.”

In this case, Judge Walton ruled, the exemption does not apply. He ordered the NRO to process the requested budget records under the FOIA.

“The Court …finds that the CBJB [i.e., the NRO Congressional Budget Justification Book] is not protected by [the operational files] exemption from the FOIA’s search and review requirements, and the defendant [NRO] must therefore perform these tasks and disclose those parts of the CBJB which must be released under [the FOIA],” he concluded.

See Judge Walton’s July 24 ruling in Steven Aftergood v. National Reconnaissance Office, D.C. District Case No. 05-1307.

Judge Walton’s narrowly crafted opinion did not resolve the question of whether or not the budget documents can actually be considered “operational” files.

Instead, he ruled that even if they are operational, the exemption for operational files does not apply in this case because the budget records have been disseminated outside of their original file location. Under the terms of the statute, such dissemination nullifies the exemption.

In particular, he cited the NRO’s own admission that the “CBJB was disseminated to the DNI for approval and for inclusion in the President’s budget.”

The effectiveness of Judge Walton’s ruling may be short-lived, however, if legislation now pending in the Senate version of the 2007 intelligence authorization act is enacted into law.

That Senate bill would dictate that “protected operational files provided by elements of the Intelligence Community to the Office of the DNI carry with them any exemption such files had from Freedom of Information Act (FOIA) requirements for search, review, publication, or disclosure” (Senate Report 109-259 on section 411 of S. 3237). In other words, dissemination of exempted NRO operational records to the DNI would no longer nullify the exemption, if the Senate language is adopted.

The FAS lawsuit against the NRO benefitted from a masterful amicus brief prepared by Meredith Fuchs, general counsel at the National Security Archive, and Matthew B. Archer-Beck, now of the law firm Sidley Austin, in which they discussed the legislative history of the operational files exemption and the proper limits of its application. Senator Ron Wyden (D-OR) wrote a letter attesting to the fact that the requested NRO budget records had been disseminated to Congress.

Those and other selected case files can be found here.

A prior release of unclassified NRO budget request records from FY 1998 is available here.

Lawmakers Scold Administration Over F-16 Sale to Pakistan

At Thursday’s hearing on the sale of 36 F-16 aircraft to Pakistan, Assistant Secretary of State John Hillen endured tongue-lashings from several members of the House International Relations Committee (HIRC), who objected to the manner in which his bureau has managed the $5.1 billion arms package. Of particular concern was the administration’s unilateral decision to waive the customary 20-day pre-notification for major arms sales, which many members viewed as a deliberate attempt to circumvent the committee’s authority. The decision – and the confrontation it provoked – could have far-reaching consequences, not only for Congressional oversight of arms sales but also several key State Department initiatives.
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