Undisclosed U.S. Detention Sites Overseas and More from CRS

The use of secret U.S. prison facilities abroad, first reported by Dana Priest in the Washington Post in November 2005, has since been confirmed by President Bush and has become the focus of controversy in the U.S. and elsewhere.

A new report (pdf) from the Congressional Research Service synthesizes what is now publicly known about the secret prisons and discusses some of the relevant legal concerns they raise. (“It is based on available open-source documentation, as cited, and not on any independent CRS investigation.”)

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

See “Undisclosed U.S. Detention Sites Overseas: Background and Legal Issues,” September 12, 2006.

Some miscellaneous other new products from CRS include the following (all pdf).

“Israeli-Arab Negotiations: Background, Conflicts, and U.S. Policy,” updated September 1, 2006.

“Israel: Background and Relations with the United States,” updated August 31, 2006.

“Saudi Arabia: Current Issues and U.S. Relations,” August 2, 2006.

“Sri Lanka: Background and U.S. Relations,” updated August 1, 2006.

“Navy Ship Procurement: Alternative Funding Approaches — Background and Options for Congress,” updated July 26, 2006.

“Navy Attack Submarine Force-Level Goal and Procurement Rate: Background and Issues for Congress,” updated July 26, 2006.

“Navy Ship Propulsion Technologies: Options for Reducing Oil Use — Background for Congress,” updated July 26, 2006.

“Navy DDG-1000 (DD(X)), CG(X), and LCS Ship Acquisition Programs: Oversight Issues and Options for Congress,” updated July 26, 2006.

“Navy-Marine Corps Amphibious and Maritime Prepositioning Ship Programs: Background and Oversight Issues for Congress,” updated July 26, 2006.

“Unmanned Vehicles for U.S. Naval Forces: Background and Issues for Congress,” updated July 26, 2006.

Conflicting Bills on Warrantless Surveillance Advance in Senate

The Senate Judiciary Committee set the stage for further congressional debate over warrantless electronic surveillance by reporting out competing bills that are mutually contradictory.

A bill (S. 2453) sponsored by Committee Chairman Arlen Specter would sharply diminish judicial oversight of intelligence surveillance under the Foreign Intelligence Surveillance Act and expand unilateral presidential authority. On the other hand, a bill (S. 3001) sponsored by Senator Dianne Feinstein would reaffirm that FISA is the exclusive mechanism for conducting domestic intelligence surveillance, while making certain modifications in the Act. A third bill (S. 2455), sponsored by Sen. Mike DeWine, was also reported out.

“The [Specter] bill makes compliance with FISA entirely optional, and explicitly validates the President’s claim that he has unfettered authority to wiretap Americans in the name of national security,” said Sen. Patrick Leahy (D-VT) in a critical commentary.

“I have been briefed on the terrorist surveillance program,” said Sen. Feinstein, “and I have come to believe that this surveillance can be done, without sacrifice to our national security, through court-issued individualized warrants for content collection on U.S. persons under the FISA process.”

“So I have offered this provision to ensure that the program is carried out under the law and to make it clear that FISA remains the exclusive authority for the content collection on U.S. persons,” she said.

Sen. Jay Rockefeller (D-WV) charged that the Bush Administration had deliberately withheld information about the surveillance program from Congress to frustrate congressional oversight.

“This refusal to respond to legitimate information requests from the Oversight Committee, combined with the administration’s over-restriction of member and staff access to the NSA program, is part of a cynical White House strategy to prevent Congress from either acting or forcing it to legislate on vital national security and privacy issues in the dark,” he said.

Sen. Russ Feingold concurred that due to excessive secrecy, “The Judiciary Committee was left to legislate in the dark, with many members blindly seeking to legalize illegal behavior without even an understanding of whether those changes are actually necessary.”

Meanwhile, in the House, a bill sponsored by Rep. Heather Wilson (R-NM) faced opposition from the Bush Administration and its Congressional allies, as well as from civil libertarians.

The bill was examined in detail in a new report from the Congressional Research Service. See “H.R. 5825 (109th Congress): ‘Electronic Surveillance Modernization Act'” (pdf), September 8, 2006.

The various competing bills were discussed, and notably analyzed by James X. Dempsey of the Center for Democracy and Technology, in a September 6 hearing of the House Judiciary Committee on “Legislative Proposals to Update the Foreign Intelligence Surveillance Act.”

The full hearing record of three Senate Judiciary Committee hearings earlier this year on “Wartime Executive Power and the National Security Agency’s Warrantless Surveillance Authority” has just been published (908 pages).

House Approves Database of Government Contracts

The House of Representatives approved a bill to establish a publicly searchable database of federally-funded grants and contracts. The Senate adopted the measure last week, and the White House indicated that the President would sign it.

“This bill would require the Office of Management and Budget to create a Web site listing all grant awards and contracts in a manner that would be easily accessible and free of charge. In a nutshell, this is about [providing] information to taxpayers about how their hard-earned dollars are being spent,” said Rep. Tom Davis (R-VA).

“The legislation we are passing today is not comprehensive reform; it will not restore honesty and accountability in government,” said Rep. Henry Waxman (D-CA). “It’s a modest, bipartisan step in the direction of open government. But in the climate we’re currently in, even a small step forward is worth supporting and celebrating.”

See the September 13 House floor debate on the Federal Funding Accountability and Transparency Act of 2006 here.

Reid Proposes Further Declass of Senate Intel Report

Sen. Harry Reid (D-NV), the Senate Minority Leader, proposed an amendment that would require the declassification of certain classified portions of a Senate Intelligence Committee report regarding pre-war intelligence on Iraq.

Sen. Ron Wyden and Sen. Carl Levin charged last week that portions of the controversial report had been withheld from public disclosure in order to evade accountability or to conceal “highly offensive” information unrelated to national security.

See the text of Sen. Reid’s proposed amendment to the pending maritime security bill here.

Selected CRS Reports

Some notable recent reports of the Congressional Research Service obtained by Secrecy News that are not otherwise readily available to the public include the following (all pdf).

“Federal and State Quarantine and Isolation Authority,”
updated August 16, 2006.

“Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” updated August 11, 2006.

“Cuba: Issues for the 109th Congress,” updated August 8, 2006.

“Japan-U.S. Relations: Issues for Congress,” updated August 7, 2006.

“Industrial Competitiveness and Technological Advancement: Debate Over Government Policy,” updated August 3, 2006.

“Technology Transfer: Use of Federally Funded Research and Development,” updated August 3, 2006.

“The Committee on Foreign Investment in the United States (CFIUS),” updated July 28, 2006.

Sea Shadow, Hughes Mining Barge Available for Display

The U.S. Navy announced today that the “Sea Shadow” (IX-529), an experimental naval craft, and the Hughes Mining Barge (HMB-1), which was originally developed as part of the CIA’s 1974 Project Jennifer to help raise a sunken Soviet submarine, are available for donation to a suitable museum or organization.

“Ex-SEA SHADOW is contained inside HMB-1…. The donee may display the two vessels as currently configured as a single unit, or display them individually,” according to a notice in the Federal Register.

“If the Navy receives no interest by an eligible recipient within two years, the Navy reserves the right to remove the vessels from donation consideration and proceed with their disposal.”

See “Notice of Availability for Donation of the Test Craft Ex-SEA SHADOW (IX-529) and Hughes Mining Barge (HMB-1),” Federal Register, September 14.

Iraq Intelligence Reports Are Overclassified, Senators Say

Two partially declassified reports issued by the Senate Intelligence Committee last week that were critical of pre-war intelligence on Iraq remain significantly overclassified, according to Senator Ron Wyden (D-OR), who said he would seek further disclosure.

Furthermore, portions of the two Intelligence Committee reports that were withheld conceal “certain highly offensive activities” and “deeply disturbing information,” said Sen. Carl Levin (D-Mich.).

“I am very troubled that some information in these reports has been classified even though its release would have no impact on national security,” Sen. Wyden said.

“I am particularly concerned it appears that information may have been classified to shield individuals from accountability,” he said in a September 8 news release.

“Portions of the report which the intelligence community leaders have determined to keep from public view provide some of the most damaging evidence of this administration’s falsehoods and distortions,” said Senator Levin in a September 8 floor statement.

“What remains classified, and therefore covered up, includes deeply disturbing information,” he said.

“Much of the information redacted from the public report does not jeopardize any intelligence source or method but serves effectively to cover up certain highly offensive activities.”

“Even the partially released picture is plenty bleak, about the administration’s use of falsehoods and distortions to build public support for the war. But the public is entitled to the full picture. Unless this report is further declassified, they won’t get it,” Sen. Levin said.

Senator Wyden announced that he would ask the Public Interest Declassification Board, an advisory board originally created by statute in 2000, to review the two reports and to render a judgment as to whether they were properly declassified.

This would be the first time that a Member of Congress has tasked the Board to perform such a declassification oversight function.

The two Senate Intelligence Committee reports, released last week in redacted form, are:

“The Use by the Intelligence Community of Information Provided by the Iraqi National Congress” (211 pages, 9 MB PDF file).

“Postwar Findings About Iraq’s WMD Programs and Links to Terrorism and How They Compare with Prewar Assessments” (151 pages, 7 MB PDF file).

DOE Reports on Inadvertent Disclosures of Classified Info

The Department of Energy has issued its twenty-second report to Congress (pdf) on inadvertent disclosures of classified nuclear weapons-related information in declassified files at the National Archives.

The new report said that reviewers had found an additional 736 pages containing such classified information within the more than 465,000 pages of records that they recently reviewed. The classified materials were removed from public access.

A copy of the new report, dated August 2006 but released in declassified form in September, is available here.

The DOE effort to review previously declassified records for inadvertent disclosures began in 1999 and has nearly been completed. DOE reviewers at the Archives will soon turn their attention to the proper processing of records that are currently undergoing or scheduled for declassification.

The National Security Archive at George Washington University recently obtained cost data on the Department of Energy program to review declassified records at the National Archives.

“So far, according to DOE, the review of the 204 million pages [the total reviewed since 1999] has cost nearly $22 million,” reported William Burr of the National Security Archive.

“While the average cost of the review was about 9 cents per page, the average cost of locating the suspect information was high. The cost of finding one of the 2,766 documents [containing classified data] was almost $8,000, while the cost of finding one of the withdrawn [classified] pages [that had been inadvertently disclosed] was around $3,300,” he wrote.

“The effort to retrieve [classified] ‘RD’ nuclear weapons design information is understandable (although whether adversaries would actually have seized opportunities to find the needle in the archival haystack is a problem worth considering).”

“It would have been far better, however, if DOE had undertaken its review with better guidelines enabling it to focus on protecting truly sensitive information instead of impounding documents that may have little or no sensitivity,” Burr wrote.

See “How Many and Where Were the Nukes?” edited by Dr. William Burr, National Security Archive, August 18, 2006.

DoD Unveils Detainee Interrogation Policy

The Department of Defense, having concluded that its interests would be best served by public disclosure, released a new directive (pdf) on policy towards enemy detainees and a new Army Field Manual (pdf) on detainee interrogation.

The new detainee policy explicitly bars “cruel, inhumane and degrading” treatment of detainees who are in Defense Department custody and defines a minimum standard of humane care. The new Field Manual identifies 19 interrogation techniques that may be used, three of which are new, and prohibits others.

Army Gen. John Kimmons said that the Pentagon weighed the costs and benefits of classifying portions of the new policy documents, and decided in favor of full public disclosure.

“We initially considered taking the additional techniques I described, the three new ones, and putting them into a classified appendix of some sort to keep them out of the hands of the enemy, who regularly reads our field manuals as a matter of course,” he said at a September 6 Pentagon press briefing.

“We weighed that against the needs for transparency and working openly with our coalition partners who don’t have access to all of our classified publications….”

“We also felt that even classified techniques, once you use them on the battlefield over time, become increasingly known to your enemies, some of whom are going to be released in due course. And so on balance, in consultation with our combatant commanders, we decided to go this [unclassified] route. We’re very comfortable with it; so are our combatant commanders,” Gen. Kimmons said.

The new Army Field Manual is still marked “For Official Use Only” (FOUO). But “in the interest of full transparency” the Army released it anyway.

“The ‘FOUO’ markings are no longer operative,” an Army spokesman said.

See “Human Intelligence Collector Operations,” Field Manual FM 2-22.3, September 2006 (11 MB PDF file).

See also “Department of Defense Detainee Program,” DoD Directive 2310.01E, September 5, 2006.

The Office of the Director of National Intelligence likewise found it advantageous and appropriate to disclose significant new information about 14 “high value detainees” that were formally transferred from the custody of the Central Intelligence Agency to the Department of Defense.

See “Summary of the High Value Terrorist Detainee Program” (pdf), ODNI, September 6.

See also ODNI “biographies” of the 14 detainees.

The occasional triumphs and frequent defects of media coverage of the detention and treatment of enemy combatants were reviewed at length by Eric Umansky in “Failures of Imagination,” Columbia Journalism Review, September/October 2006.

2007 Intelligence Authorization Bill Stalled

For the second year in a row, the U.S. Senate may fail to enact an intelligence authorization bill, effectively neutering the intelligence oversight process.

“The failure of the Senate to pass intelligence authorization for 2 years threatens to erode the ability of the Intelligence Committee to carry out the mission assigned to it by the Senate,” said Sen. Jay Rockefeller (D-WV), the ranking member of the Committee, in a floor statement.

In an effort to compel Senate action on the intelligence bill, Sen. Rockefeller introduced an amendment that would strip out language in the Defense Appropriations bill that provides a nominal authorization for continuing intelligence activities.

See September 6 statements by Sen. Rockefeller and Sen. Dianne Feinstein here.