OLC Views the Office of Vice President, 1955-2007

The Office of Legal Counsel (OLC) at the Department of Justice has been pondering the peculiar status of the Office of Vice President for decades, and has recently released a collection of more than a dozen OLC opinions regarding the Vice President, dating back to the Eisenhower Administration.

“The Vice President, of course, occupies a unique position under the Constitution. For some purposes, he is an officer of the Legislative Branch, and his status in the Executive Branch is not altogether clear,” wrote William H. Rehnquist, the future Chief Justice, in a 1969 OLC opinion (pdf) that foreshadowed a similar argument offered last year by Vice President Cheney.

“With regard to the Vice President there is even a constitutional question whether the President can direct him to abide by prescribed standards of conduct,” asserted Antonin Scalia in a 1974 OLC opinion (pdf).

“The Vice Presidential Office is an independent constitutional office, and the Vice President is independently elected. Just as the President cannot remove the Vice President, it would seem he may not dictate his standards of conduct,” the future Justice Scalia wrote.

The OLC opinions concerning the Vice President, which were previously provided to the House Judiciary and Oversight Committees, were released by OLC in response to a Freedom of Information Act request from the Federation of American Scientists.

Extensive Nuclear Missile Deployment Area Discovered in Central China

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More than 50 launch pads for nuclear ballistic missiles have been identified scattered across a 2,000 square kilometer (772 square miles) area of central China, according to analysis of satellite images. Click image for full size. Also download GoogleEarth KMZ file.

By Hans M. Kristensen

Analysis of new commercial satellite photos has identified an extensive deployment area with nearly 60 launch pads for medium-range nuclear ballistic missiles in Central China near Delingha and Da Qaidam.

The region has long been rumored to house nuclear missiles and I have previously described some of the facilities in a report and a blog. But the new analysis reveals a significantly larger deployment area than previously known, different types of launch pads, command and control facilities, and missile deployment equipment at a large facility in downtown Delingha.

The U.S. government often highlights China’s deployment of new mobile missiles as a concern but keeps the details secret, so the discovery of the deployment area provides the first opportunity for the public to better understand how China operates its mobile ballistic missiles.
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NBACC director says they will not create threats at lab

The laboratory director of the National Biodefense Analysis and Countermeasures Center (NBACC), Dr. Patrick Fitch, said yesterday that research at the laboratory will not “create threats in order to study them”. This statement is a welcome change from previous presentations about the lab’s mission.

The controversy about the research goals of the NBACC emerged after Lt. Colonel George Korch, Jr., PhD, gave a powerpoint presentation about the facility in February 2004. According to this talk (the slides are available here), part of the NBACC threat assessment mission would include acquiring, growing, modifying, storing, stabilizing, packaging, and dispersing biological threat agents to determine various properties and capabilities. The presentation also states that the facility will “characterize classical, emerging, and genetically engineered pathogens for their biological threat agent potential” through “computational modeling of feasibility, methods, and scale of production.” These statements, if true, meant that portions of the research planned for the facility could be interpreted to be in violation of Article I of the Biological Weapons Convention, which says that signatory states are not “to develop, produce, stockpile, or otherwise acquire or retain microbial or biological agents, or toxins, that have no justification for prophylactic, protective, or other peaceful purposes.” From Dr. Fitch’s statements today it appears that the research priorities of NBACC have changed since 2004 to minimize the perception that the U.S. will conduct illegal research at this facility.

Dr. Fitch also said that a majority of the research that will occur at the lab will be unclassified, and he is working to develop a policy that will publicly list all of the projects going on at the NBACC, even if some of the research results remain classified. We’ll have to wait and see if these statements actually come true, but for the time being this seems like a positive development.

Monday’s talk was sponsored by the Homeland Security Program at the Center for Strategic and International Studies (CSIS). The Federation of American Scientists has more information about the debate surrounding the NBACC on their website, available here.

Nukes in the Taiwan Crisis

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Nuclear bombs in Asia at the time of the Taiwan Strait crisis are listed (red box) in this Strategic Air Command document obtained under the Freedom of Information Act (FOIA). Click on image above to download PDF copy of list.

By Hans M. Kristensen

Thanks to the efforts of Bill Burr at the National Security Archive, some of the veil covering U.S. nuclear war planning against China in the 1958 Taiwan Strait crisis now has been lifted by a declassified military study.

It shows that on the day after the Chinese began shelling the Quemoy islands on August 23, 1958, U.S. Air Force Headquarters apparently assured Pacific Air Forces “that, assuming presidential approval, any Communist assault upon the offshore islands would trigger immediate nuclear retaliation.” Yet President Dwight D. Eisenhower fortunately rejected the use of nuclear weapons immediately, even if China invaded the islands, and emphasized that under no circumstances would these weapons be used without his approval.

Caution against nuclear use didn’t mean not planning for it, however, and in the years after the Taiwan Strait crisis an enormous nuclear build-up occurred in the Far East. The numbers started to decline in the 1970s, and for a period during the 1980s and first half of the 1990s, nuclear planning against China was reduced to reserve force contingencies. In the past decade, however, China has again become a focus for U.S. nuclear strike planning.

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Thinking Big on Uranium and Iran

Iran continues to enrich uranium. Enrichment is the process that makes natural uranium useable in a nuclear reactor or, if carried further, a nuclear bomb. Iran claims that the motivation for its enrichment program is entirely peaceful but almost no one outside of Iran believes this. With the United States shouting from the sidelines, the Europeans are continuing the hard diplomatic work of persuading Iran to suspend its enrichment program, with little success.

The Iranians claim that they have just as much right as anyone to enrich uranium for their civilian nuclear reactors. This is not true but it is not entirely wrong. Part of the reason for on-going sanctions is that they lied to the International Atomic Energy Agency (IAEA) for years. Iran could, in theory, make amends and satisfy the IAEA and then legally enrich uranium. Any country could. Enrichment, the process of preparing uranium for a nuclear reactor or, potentially, a nuclear weapon, is today a legitimate industrial enterprise. That is a problem.

The administration looks at the situation through the lens of an Iranian threat, but the problem is long-term, global, and fundamental. It is time to make a bold proposal that will apply to the Iranians but includes everyone else, even the United States. Continue reading

White House Issues Policy on “Controlled Unclassified Info”

The White House last week issued a long-awaited policy on “controlled unclassified information” (CUI) to provide a uniform government-wide system for safeguarding unclassified information that is deemed sensitive.

The CUI framework is supposed to replace the numerous individual agency control markings — “sensitive but unclassified,” “for official use only,” and over a hundred other designations — and thereby to overcome barriers to information sharing within the government.

But the new policy will do nothing to restore public access to government records that have been improperly withheld.

Development of the CUI policy began with a December 16, 2005 memo from the President directing agencies to “standardize procedures for sensitive but unclassified information.” Despite the passage of two and a half years, however, little progress has been made in defining the terms of the new policy.

It establishes a single CUI framework, with three graduated levels of sensitivity and security. But the definition of what information may qualify as CUI, which includes anything that “under law or policy” requires protection from unauthorized disclosure, is vague and expansive.

To put it another way, the CUI policy does not exclude anything that is currently controlled as Sensitive But Unclassified.

This is a disappointment in light of previous suggestions that wholesale disclosures of currently controlled unclassified information might ensue.

“The great majority of the information which is now controlled can be put in a simple unclassified, uncontrolled category, it seems to me,” said Amb. Thomas McNamara, program manage of the ODNI Information Sharing Environment, in 2006 testimony (pdf) before Congress.

But under the new Bush policy, “the great majority of the information” that Amb. McNamara said should be uncontrolled will remain controlled and unavailable to the public.

The CUI policy properly notes that the new policy does not modify the requirements of the Freedom of Information Act process: “CUI markings may inform but do not control the decision of whether to disclose or release the information to the public, such as in response to a request made pursuant to the Freedom of Information Act.”

But despite the passage of years since the policy was proposed, many of the hard decisions involved have been deferred to the implementation phase.

Which, if any, of the more than 100 existing control categories will be canceled, rather than absorbed into the new CUI category? The new policy does not say. At what point, if any, does the CUI designation expire? There’s no way to tell. What enforcement mechanisms are established to ensure compliance with the new policy? To be determined.

Update: Smintheus at Daily Kos has more.

SSCI Calls for Intel Contractor Accountability

New limitations and reporting requirements should be imposed on intelligence contractors, the Senate Select Committee on Intelligence said in its new report on the 2009 Intelligence Authorization Act.

“Several provisions of the bill are aimed at reducing the overall use of contractors by the Intelligence Community. The Committee believes these provisions are necessary for financial and accountability purposes,” the report said.

One provision, advanced by Sen. Dianne Feinstein with Sen. Feingold, “requires a one-time report to the congressional intelligence committees by the DNI describing the activities within the Intelligence Community that the DNI believes should only be conducted by governmental employees but that are being conducted by one or more contractors [and] an estimate of the number of contractors performing each such activity.”

Another provision, also moved by Sen. Feinstein and other Democratic members, would “prohibit the Director of the Central Intelligence Agency from permitting a contractor or subcontractor of the CIA to carry out an interrogation of an individual and to require that all interrogations be carried out by employees.”

Similar requirements were also adopted by the House Intelligence Committee last week (pdf).

The May 8 Senate report on the 2009 Intelligence Authorization Act, which includes many other significant intelligence policy provisions, is available here.

Secret Law Hearing Follow-Up

A recent Senate hearing on the subject of “secret law” drew an appreciative review today from syndicated columnist and first amendment champion Nat Hentoff.

“So important was an April 30 hearing before the Senate Judiciary Subcommittee on the Constitution that it should have been on front pages around the country,” he wrote.

“Titled ‘Secret Law and the Threat to Democratic and Accountable Government’ and chaired by Sen. Russ Feingold, Wisconsin Democrat. it focused on an issue ignored by the presidential contenders that has deeply weakened our rule of law.”

See “Let the Sunshine In” by Nat Hentoff, via The Washington Times, May 12.

“It’s a given in our democracy that laws should be a matter of public record,” wrote Senator Feingold in a Los Angeles Times opinion piece. “But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.”

See “Government in Secret,” by Sen. Russ Feingold, May 8.

Wanted: OSC Animal Pox Report

In January 2008, the ODNI Open Source Center (OSC) published a report on “Recent Worldwide Research on Animal Pox Viruses” principally authored by Dr. Alfred D. Steinberg of the MITRE Corporation.

Secrecy News has been trying unsuccessfully to obtain a releasable copy of the document. A request to ODNI was forwarded to the Central Intelligence Agency, which manages the Open Source Center, months ago. CIA did not reply to the request. The MITRE Corporation has also been unresponsive, except for a courteous note from the author.

Readers who have ready access to the OSC report on animal pox viruses are invited to forward the unclassified document to me directly, preferably in soft copy. Confidentiality — or, alternatively, an effusive public expression of gratitude — is promised, as you prefer.

Copies of other OSC publications would also be welcome.

Congress’s Contempt Power, and More from CRS

Noteworthy new reports from the Congressional Research Service that have not been made publicly accessible online include the following (all pdf).

“Defense: FY2009 Authorization and Appropriations,” May 5, 2008.

“Second FY2008 Supplemental Appropriations for Military Operations, International Affairs, and Other Purposes,” updated May 8, 2008.

“Director of National Intelligence Statutory Authorities: Status and Proposals,” updated April 17, 2008.

“Congress’s Contempt Power: Law, History, Practice, and Procedure,” updated April 15, 2008.

“Navy LPD-17 Amphibious Ship Procurement: Background, Issues, and Options for Congress,” May 6, 2008.

“U.S.-French Commercial Ties,” updated April 7, 2008.

“Strategic Airlift Modernization: Analysis of C-5 Modernization and C-17 Acquisition Issues,” updated April 15, 2008.