A Glimpse of the SILEX Uranium Enrichment Process

A relatively new technology for enriching uranium known as “Separation of Isotopes by Laser Excitation” or SILEX is described in some fresh detail in a recent Los Alamos paper (pdf).

SILEX, developed in 1992 by Australian scientists, is the rarest of birds in U.S. classification policy: It is privately generated information that is nevertheless classified by the U.S. government.

Ordinarily, information must be owned or controlled by the government in order to be eligible for classification in the first place. But under the peculiar terms of the Atomic Energy Act, the government may impose classification on “all” information concerning nuclear weapons and related matters that has not been previously declassified.

Since the new SILEX technology has never been declassified, it is ipso facto classified, despite the fact that it was generated by private (and foreign) researchers. It is the only known case in which the Atomic Energy Act has been used in this constitutionally questionable manner. (See Secrecy News, 06/26/01).

Unclassified details of the SILEX process, which uses pulsed lasers to selectively excite uranium hexafluoride molecules containing uranium-235, are presented in “Enrichment Separative Capacity for SILEX” by John L. Lyman, Los Alamos National Laboratory, LA-UR-05-3786 (thanks to WT).

CIA IG Report on 9/11 Declassified by Law

In compliance with a requirement imposed by Congress, the Central Intelligence Agency declassified and released the executive summary of a CIA Inspector General report (pdf) that was generally critical of CIA performance prior to September 11, 2001.

From a secrecy policy point of view, the most interesting thing about the disclosure is that it was the result of a congressional initiative undertaken against the wishes of the executive branch.

“While meeting the dictates of the law,” said CIA Director Mike Hayden in an official statement, “I want to make it clear that this declassification was neither my choice nor my preference.”

In theory, the CIA’s “choice” or “preference” should be irrelevant to the declassification process. The President has directed categorically that “Information shall be declassified as soon as it no longer meets the standards for classification under this order.” (Executive Order 13292, section 3.1). It is clear from the release of the Inspector General report, which was partially redacted, that it could be declassified. And therefore it should have been.

But the executive order is not self-enforcing and declassification does not occur spontaneously. Without some external stimulus it may not occur at all.

In this case, Congress provided the missing ingredient, thanks to Sen. Ron Wyden (D-OR), who authored the amendment to the recent legislation implementing the recommendations of the 9/11 Commission.

While giving the needed push, Congress did not declassify the document itself, which is arguably within its power, nor did it define the precise terms of declassification, stating only that the document should be “declassified to the maximum extent possible, consistent with national security” — as determined by the CIA.

A more ambitious and unprecedented declassification action is the congressional requirement to disclose the amount of the 2007 National Intelligence Program budget, which must be declassified and released by October 30. No exercise of discretion is permitted.

Air Force Views Irregular Warfare

In what might be seen as a response to last year’s popular Army Field Manual 3-24 on Counterinsurgency (pdf), the U.S. Air Force has issued a new publication on “Irregular Warfare” (pdf).

“Irregular warfare (IW) is defined as a violent struggle among state and nonstate actors for legitimacy and influence over the relevant populations. IW favors indirect approaches, though it may employ the full range of military and other capabilities to seek asymmetric approaches in order to erode an adversary’s power, influence, and will.”

Though less rigorous and less original than the Army manual, the new document still contains points of interest.

It notes, for example, that counterinsurgency is not the sum total of U.S. military objectives. To the contrary, sometimes the U.S. will side with insurgents: “Various US government organizations are postured to recruit, organize, train, and advise indigenous guerrilla or partisan forces,” the document observes.

“In some UW [unconventional warfare] operations, the use of US military aircraft may be inappropriate, tactically or politically. In those cases, training, advising, and assisting the aviation forces of insurgent groups, resistance organizations, or third-country nationals may be the only viable option.”

See “Irregular Warfare,” Air Force Doctrine Document 2-3, 1 August 2007.

Nuclear Arms Racing in the Post-Cold War Era: Who is the Smallest?

China and the Uniked Kingdom have started a new arms race over who has the smallest nuclear weapons arsenal.

By Hans M. Kristensen

Mine is smaller! No, mine is smaller!!

China and the United Kingdom have started a new type of nuclear arms race for the honor to have the smallest number of nuclear weapons.

In April 2004, the Chinese Foreign Ministry declared in the fact sheet China: Nuclear Disarmament and Reduction of: “Among the nuclear-weapon states, China…possesses the smallest nuclear arsenal.”

In May 2007, British Defense Minister Des Browne stated in a written response to a parliamentary question that the United Kingdom has “the smallest stockpile of any of the nuclear weapon states recognised under the NPT.”

Apparently, the race is on for who is the smallest.
Continue reading

Details Sought on Domestic Use of Spy Satellites

Updated below

Although Congress is out of session, the news that classified intelligence satellites may increasingly be used for domestic surveillance applications did not go unnoticed by congressional overseers.

Rep. Ed Markey (D-MA), chair of a House Energy and Commerce subcommittee, sent a letter (pdf) to Homeland Security Secretary Michael Chertoff seeking answers to a series of detailed questions about the new initiative, which was first reported in the Wall Street Journal. Among Rep. Markey’s questions were these:

  • Will the public have an opportunity to comment on the development of appropriate guidelines for domestic use of spy satellites?
  • What assessments of the legality of the new surveillance program have been performed?
  • How does the Department plan to ensure that Americans’ privacy and civil rights are protected once this new surveillance program becomes operational?

A copy of Mr. Markey’s August 16 letter is here. A response was requested no later than September 7.

The new surveillance program “has drawn sharp criticism from civil liberties advocates who say the government is overstepping the use of military technology for domestic surveillance,” wrote Eric Schmitt in the New York Times. See “Liberties Advocates Fear Abuse of Satellite Images,” August 17.

Rep. Bennie Thompson, chair of the House Homeland Security Committee, scolded the Department of Homeland Security in an August 22 letter (pdf) for failing to properly brief his Committee on the new surveillance program and for not taking account of civil liberties concerns in the development of the program. Rep. Thompson’s letter was first reported by Bobby Block in the Wall Street Journal August 23.

Court Overturns Dismissal of “State Secrets” Case

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.”

The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege.

A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.

CRS Reports on Various Topics

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Capital Punishment Overview: 2006-2007 Term of the Supreme Court,” July 20, 2007.

“Globalization, Worker Insecurity, and Policy Approaches,” updated July 24, 2007.

“Executive Branch Reorganization and Management Initiatives: A Brief Overview,” updated July 10, 2007.

“Constitutional Limits on Punitive Damages Awards: An Analysis of the Supreme Court Case Philip Morris USA v. Williams,” updated July 17, 2007.

“Internet Search Engines: Copyright’s ‘Fair Use'” in Reproduction and Public Display Rights,” updated July 12, 2007.

“Nuclear Energy Policy,” updated July 12, 2007.

“The Committee on Foreign Investment in the United States (CFIUS),” updated July 23, 2007.

“Private Security Contractors in Iraq: Background, Legal Status, and Other Issues,” updated July 11, 2007.

Increased Domestic Role for Intelligence Foreseen

Spy satellites and other classified intelligence technologies are poised to play a greater role in domestic homeland security and law enforcement missions, challenging long-standing legal and policy barriers against their domestic use.

The Wall Street Journal reported today that the Director of National Intelligence recently authorized access to intelligence satellite products by officials of the Department of Homeland Security to help support border security. See “U.S. to Expand Domestic Use of Spy Satellites” by Robert Block, Wall Street Journal, August 15, p.1.

A comprehensive 2005 government study (pdf) of the use of intelligence capabilities for domestic applications concluded that “significant change is needed in policy regimes regulating domestic use of IC [intelligence community] capabilities” in order to permit their full exploitation.

“The use of IC capabilities for domestic purposes should be… based on the premise that most uses of IC capabilities are lawful rather than treating any use as an exception to the rule requiring a case-by-case adjudication,” the study said.

“There is an urgent need for a top-down, Executive Branch review of all laws and policies affecting use of intelligence capabilities for domestic purposes,” the report said.

In particular, the 1981 Executive Order 12333 which governs intelligence activities “should be amended to permit as unfettered an operational environment for the collection, exploitation and dissemination [of domestic intelligence data] as is reasonably possible,” the report recommended.

The authors acknowledged that such “unfettered” operation would require increased oversight, but they suggested that it could be satisfactorily accomplished by the Privacy and Civil Liberties Oversight Board. The Board has been a minor, not notably influential player in recent intelligence policy disputes.

The report acknowledged in passing a problematic 2001 U.S. Supreme Court ruling in the case Kyllo v. United States, which concluded that the use of infrared sensors to scan a private residence for heat lamps used in marijuana cultivation constituted an unlawful warrantless search. The ruling appears to be significantly at odds with the new domestic intelligence thrust.

“This decision has placed in question the continued viability of past settled practice of the IC within the domestic domain,” the study delicately observed.

Nevertheless, “to date we are not aware of any clear authoritative guidance issued on the impact, if any, of this decision.”

The 2005 study was first reported by the Wall Street Journal today. A copy of the unclassified study, which was “produced solely for the use of the United States Government,” was obtained by Secrecy News. See “Civil Applications Committee (CAC) Blue Ribbon Study,” Independent Study Group Final Report, September 2005.

Intelligence support to domestic environmental monitoring and emergency response has been conducted since the 1970s under the supervision of the little-known interagency Civil Appplications Committee. See this 2001 fact sheet describing the history and mission of the Committee.

National Bio-Surveillance Integration System Program has been mismanaged

Department of Homeland Security’s Inspector General released a stinging new report that details serious issues facing the National Bio-Surveillance Integration System (NBIS). NBIS was launched in 2004 with the goal of integrating all of the biosurveillance programs across the US into a single system to enhance our capability to detect agents and disease trends and respond rapidly. For example, the Centers for Disease Control and Prevention operates their BioSense program, to collect data on human health, but the data from that system is not integrated with data from the Department of Homeland Security’s BioWatch program, which is designed to detect the release of airborne biological agents. There are other surveillance systems in place and in development as well, and although you would be hard pressed to find anyone that thinks any of the systems are working optimally it is still important to try to integrate the programs into a single system (in case they ever do become robust and efficient).

The US has spent an estimated $32 billion on electronic surveillance systems and various other IT initiatives to address biodefense since 2001.

The report tells of inconsistent leadership and staffing, which has hampered NBIS delivery. In some cases many months were wasted with unnecessary administrative hurdles delaying the program. The few contracts that have been awarded under the program seem of questionable value, sometimes because the contractor was not given sufficient guidance to complete the work.

Most shocking to me was the fact that they have yet to finish a plan for implementation. The report stated plainly that, “As a result of the repeated transitions and staffing shortfalls, planning documents needed to guide information technology (IT) development have yet to be finalized. Program management has not effectively communicated and coordinated with stakeholders to secure the data, personnel, and information sharing agreements needed to support system development. Additionally, program management did not provide the contractor with adequate guidance, requirements input, or data sources to deliver a fully functional system. As such, the contractor may not fulfill NBIS capability and schedule requirements, which potentially could result in cost increases to the program.”

Assistant Secretary for Health Affairs and Chief Medical Officer, Jeffrey Runge MD, agreed with all of the findings and recommendations in the report and provided very constructive comments that indicate a sincere willingness to improve the program and stated that many of the IG’s recommendations were already being addressed. That is the nugget of good news here.