Evolution of the Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act, the 1978 law that is supposed to govern surveillance of foreign intelligence targets within the U.S., has had an unusually dynamic legislative history. It has been modified in a hundred ways on at least a dozen occasions, the Congressional Research Service reported (pdf) this week.

Despite the demonstrated adaptability of this statute, the Bush Administration chose to conduct its NSA Terrorist Surveillance Program outside of the legally binding FISA framework and has not sought to amend it.

“Abiding by FISA does not mean clinging to [an obsolete] 1978 structure,” emphasized Rep. Jane Harman, ranking member of the House Intelligence Committee at a hearing this week. “FISA has been modernized.”

“Each time the Administration has come to Congress and asked to modernize FISA, Congress has said ‘yes’,” she recalled.

“Congress extended the time for obtaining emergency warrants so that surveillance can begin 72 hours before the government obtains a warrant. Congress expanded the authority to conduct ‘trap and trace’ surveillance on the Internet. Congress expanded the ability to get ‘roving John Doe’ wiretaps for terrorists who switch cell phones.”

“The surveillance the President wants to do can and must be done completely under the current FISA system,” Rep. Harman concluded.

She asked the Congressional Research Service to provide a listing of prior amendments to the FISA, which turned out to be a 29 page tabulation.

See “Amendments to the Foreign Intelligence Surveillance Act (FISA), 1994-2006,” Congressional Research Service, July 19.

The prepared testimony from a July 18 House Intelligence Committee hearing on “Modernization of the Foreign Intelligence Surveillance Act” is here.

The Senate Judiciary Committee has scheduled a hearing on “FISA for the 21st Century” on July 26.

Court Denies State Secrets Claim in Wiretapping Case

In a rare judicial denial of an official “state secrets” claim, a federal court yesterday rejected (pdf) a government assertion that a lawsuit against AT&T alleging illegal wiretapping should be dismissed because it would place state secrets at risk.

In May, Director of National Intelligence John Negroponte formally asserted the state secrets privilege in support of a motion to dismiss the lawsuit brought by the Electronic Frontier Foundation.

But instead of simply deferring to the executive branch, Judge Vaughn R. Walker did his own analysis of the matter.

“The first step in determining whether a piece of information constitutes a ‘state secret’ is determining whether that information actually is a ‘secret’,” he wrote.

He went on to conclude, based on public statements by the President and other officials, that the state secrets privilege was inapplicable in this case.

“Because of the public disclosures by the government and AT&T, the court cannot conclude that merely maintaining this action creates a ‘reasonable danger’ of harming national security.”

“It is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it…. To defer to a blanket assertion of secrecy here would be to abdicate that duty….”

The court’s rejection of unconditional judicial deference is noteworthy. Although the executive branch’s assertion of the state secrets privilege has been denied on at least four occasions in the past, those denials seem to have been based on technical defects or procedural failings rather than a substantial judicial assessment of the merits of the claim.

Seeking Transparency in Federal Funding

A new legislative initiative (S. 2590) would require the government to disclose and to publish online all federal contracts, grants, and other forms of spending.

“I like to think of this bill as ‘Google for Government Spending’,” said Senator Tom Coburn (R-OK).

“The concept behind the bill is really quite simple: Put information on government spending out there for all to see and greater accountability will follow. It will also change the expectations of those receiving funds that they will know in advance that the information will be public,” he said.

The bill has neatly circumvented the usual partisan divisions and has won bipartisan support and co-sponsorship from the likes of Sen. Barack Obama (D-IL) and Sen. John McCain (R-AZ), and endorsements from Greenpeace and the Heritage Foundation.

A July 18 Senate hearing on the proposal featured statements from Senators Coburn, Obama and McCain, and testimony from Gary D. Bass of OMB Watch and Mark Tapscott of the Washington Examiner and the blog Tapscott’s Copy Desk. See their prepared statements here.

The Los Angeles Times editorialized on the bill in “Googling the Feds,” July 21.

DoD Doctrine on Military Deception

The role of deception in military operations is illuminated and elaborated in a new Department of Defense doctrinal publication (pdf).

Military deception refers to “those actions executed to deliberately mislead adversary decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission.”

The principles of deception and their execution are described in some detail in the 79 page publication.

Some types of deception are “perfidious” and are prohibited by the laws of war.

“Acts of perfidy include, but are not limited to: feigning surrender or waving a white flag in order to lure the enemy into a trap; misuse of protective signs, signals, and symbols in order to injure, kill, or capture the enemy;” and so on.

Even when properly executed, a deception operation or cover story “may fail for many reasons. It is possible that the target will not receive the story, not believe the story, be unable to act, be indecisive even if the story is believed, act in unforeseen ways, or may discover the deception.”

Furthermore, the document explains, one must assume that the enemy is also engaged in deception, creating the need for “counterdeception” programs, both defensive and offensive.

Offensive counterdeception “focuses on forcing an adversary to expend resources and continue deception operations that have been detected by reinforcing the perception that friendly forces are unaware of them.”

The new publication concludes with a series of maxims summarizing central lessons of experience in the field, and a suggested reading list.

See “Military Deception,” Joint Publication 3-13.4, July 13, 2006.

U.S. Covert Action in Japan in the 1960s Disclosed

“In the 1958-1968 decade, the U.S. Government approved four covert programs to try to influence the direction of Japanese political life,” the State Department revealed this week in the latest volume of Foreign Relations of the United States, the official history of U.S. foreign policy.

“Concerned that potential electoral success by leftist political forces would strengthen Japanese neutralism and eventually pave the way for a leftist government in Japan, the Eisenhower administration authorized the Central Intelligence Agency before the May 1958 elections for the Japanese House of Representatives to provide a few
key pro-American and conservative politicians with covert limited financial support and electoral advice,” according to an Editorial Note in the new volume (document 1).

“By 1964, key officials in the Lyndon Johnson administration were becoming convinced that because of the increased stability in Japanese politics, covert subsidies to Japanese politicians were no longer necessary.”

“Furthermore, there was a consensus that the program of subsidies was not worth the risk of exposure. The subsidy program for Japanese political parties was phased out in early 1964.”

“Meanwhile, a broader covert program, divided almost equally between propaganda and social action and designed to encourage key elements in Japanese society to reject the influence of the extreme left, continued to be funded at moderate levels — $450,000 for 1964, for example — throughout the Johnson administration.”

See Foreign Relations of the United States, 1964-1968, Volume XXIX, Part 2, Japan, published July 18.

U.S. Army Issues Manual on Police Intelligence Operations

A new U.S. Army Field Manual (pdf) introduces the concept of “police intelligence operations,” an emerging hybrid of military intelligence and law enforcement.

“Police intelligence operations are a military police function that supports, enhances, and contributes to a commander’s situational understanding and battlefield visualization and FP [force protection] programs by portraying the relevant criminal threat and friendly information, which may affect his operational and tactical environment.”

The new manual presents doctrine that is broadly applicable to support military operations abroad as well as domestic military facility protection.

A copy of the new manual was obtained by Secrecy News.

See “Police Intelligence Operations,” Field Manual 3-19.50, 21 July 2006 (3.8 MB PDF).

NAPA Report on NIH Ethics Released

Last year the National Academy of Public Administration developed a proposal to perform an “ethics audit” of the National Institutes of Health (NIH).

The proposal was a response, at NIH’s request, to persistent concerns from members of Congress and others that numerous NIH employees had conflicts of interest arising from their compensated activities outside of the agency.

Rumor had it that the resulting NAPA proposal contained in a January 2006 report was “not what NIH wanted, so they simply buried the paper after it was given to the Director.”

“One of the … people who felt it got deep-sixed thought it would be of interest to the NIH research community,” a friendly tipster wrote.

Secrecy News requested the document under the Freedom of Information Act, and it was promptly released by NIH.

See “Enhancing Risk Management at the National Institutes of Health Through an Audit of the Ethics Program,” prepared by a National Academy of Public Administration Staff Study Team, January 2006 (4 MB PDF file).

A History of Space Nuclear Power

(updated below)

On January 19, 2006 NASA successfully launched the New Horizons spacecraft on a mission to Pluto. It will fly by the ninth planet on July 14, 2015 before proceeding into the Kuiper Belt.

New Horizons is powered by a radioisotope thermoelectric generator (RTG) fueled by plutonium-238. The natural heat of decay of the plutonium-238 fuel is converted to about 200 watts of electricity by means of thermoelectric cells.

“Since 1961, the United States has successfully flown 41 radioisotope thermoelectric generators (RTGs) and one reactor to provide power for 24 space systems,” reported Gary L. Bennett in a newly updated history of space nuclear power (pdf).

“The development and use of nuclear power in space has enabled the human race to extend its vision into regions that would not have been possible with non-nuclear power sources,” wrote Bennett, a former Energy Department and NASA official who devoted much of his career to the development of space nuclear power sources.

See “Space Nuclear Power: Opening the Final Frontier” by Gary L. Bennett, American Institute of Aeronautics and Astronautics paper number AIAA-2006-4191, presented at the 4th International Energy Conversion Engineering Conference, June 2006 (posted with the author’s permission).

Update: And see, relatedly, “Mission of Daring: The General-Purpose Heat Source Radioisotope Thermoelectric Generator” (pdf) by Gary L. Bennett and James J. Lombardo, et al, (AIAA-2006-4096, also presented at the 4th IECEC, June 2006.

Selected CRS Reports

Some notable new reports of the Congressional Research Service that are not readily available to the general public include the following.

“Navy F/A-18E/F Super Hornet and EA-18G Growler Aircraft: Background and Issues for Congress” (pdf), updated June 8, 2006.

“Air Force Aerial Refueling Methods: Flying Boom versus Hose-and-Drogue”
(pdf), updated June 5, 2006.

“Project BioShield” (pdf), updated June 5, 2006.

“China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress” (pdf), June 2, 2006.

“Presidential Transitions” (pdf), updated June 9, 2006.

“An Overview and Funding History of Select Department of Justice (DOJ) Grant Programs” (pdf), June 23, 2006.

“Changing Postal ZIP Code Boundaries” (pdf), June 23, 2006.

Ready or Not: Ready.gov Gets a Facelift

On Monday, the Department of Homeland Security (DHS) issued a press release announcing that it had updated its citizen preparedness web site, Ready.gov, with “special preparedness information for pet owners, senior citizens, and individuals with disabilities and special needs,” and “increased state and local information.” Through a meticulous comparison of the new Ready.gov to a version archived by FAS in early June, we found that the changes are largely cosmetic.

The Good News

The revised site includes valuable information for seniors and pet owners, a constructive change from the nominal details previously available. The state and local information is more comprehensive, which is good news since familiarity with community response plans is essential to preparedness. Summaries of FEMA’s information on preparedness and response for 12 natural disasters have also been added to Ready.gov. Changes to layout make the site significantly easier to navigate; however, there are still many problems.

The Bad News

Even though DHS claims that its disabilities information is revised, a simple comparison to a 2003 version of Ready.gov demonstrates that not a single word has changed in the past three years. This remains a serious issue because the advice is too broad and does not answer important questions about special considerations to make when developing an evacuation plan or how to create a support network to help you, as the National Organization on Disability suggests. DHS has also failed to rectify inaccurate information on other pages of its site, such as a recommendation to get out of the area if possible during an outdoor chemical attack. Experts at RAND have declared that evacuation should never be considered as a response to this kind of attack. Instead you should go to the upper floor of the closest building and seal yourself into a room (see the RAND study).

Almost all of the material on the “new” site was copied verbatim from the previous version, which means that unnecessarily lengthy descriptions and obvious advice have not been edited out. For example, “Quickly assess the situation,” the first instruction for responding to a nuclear attack, is an innate response that does not need to be dictated to concerned citizens. DHS has made some beneficial first steps with its updates. However, if Ready.gov really aims to prepare the American public for natural disasters and terrorist attacks, more than updating a few pages and changing the color scheme needs to be done. According to DHS the site had 23 million unique visitors from February 2003 to March 2006. People who visit the site deserve accurate and useful information. The revised site is better, but not adequate.