White House Signing Statements “Unsubstantiated,” Report Says

The Bush Administration’s use of presidential signing statements to indicate disapproval of enacted legislation has generated confusion and has undermined congressional oversight of national defense policy, the House Armed Services Committee said in a report this week (pdf).

One problem is that the Bush White House often fails to articulate the basis of its objections or their specific application in practice, the report said, terming White House objections “broad and unsubstantiated.”

“The functionality of a signing statement is greatly reduced if it is too vague to identify the concerns of the President and the interpretation of the law that the President is trying to convey to the executive branch,” the Committee report said.

Yet in issuing a signing statement indicating constitutional reservations about portions of the FY2008 defense authorization act, the President did not even identify all of the provisions that he found objectionable, the report said.

“While presidents have issued signing statements for quite some time, this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of the law.”

“Signing statements may, if used appropriately, serve a legitimate function as a tool for continuing dialog between the President, Congress, and the public. On the other hand, signing statements may be a mechanism to expand executive authority at the expense of the legislature,” the Committee report said.

The report identified options for improving oversight, such as using signing statements as a roadmap for targeted oversight of particular provisions opposed by the Administration, and introducing legislating to require formal notification of agency refusal to implement particular statutes.

See “Presidential Signing Statements,” Findings of the Subcommittee on Oversight and Investigations, House Armed Services Committee, August 18.

The Committee held a hearing on signing statements, referenced in the new report, on March 11. Prepared testimony from that hearing is available here.

Iraq Signs the Comprehensive Test Ban Treaty

The Government of Iraq yesterday signed the Comprehensive Test Ban Treaty, which prohibits all nuclear explosive testing.

“We welcome the decision by Iraq to sign the CTBT,” Tibor Toth, the Executive Secretary of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) said in a statement. “This is particularly significant given the multitude of challenges facing the Government of Iraq today: It is a strong political signal for nuclear disarmament and non-proliferation. My hope is that it will encourage other countries of the region and beyond to follow suit.”

A total of 179 States, now including Iraq, have signed the CTBT. The Treaty does not take effect, however, until it is signed and ratified by the 44 States that participated in the Treaty’s negotiations in 1996 and possessed nuclear power or research reactors at the time.

Thirty-five of those States have ratified the Treaty, including three declared nuclear weapon States: France, Russian Federation, and the United Kingdom. The nine remaining States which have not yet signed ratified the Treaty are China, North Korea, Egypt, India, Indonesia, Iran, Israel, Pakistan, and the United States. India, Pakistan and North Korea have neither signed nor ratified the Treaty. The others have signed it.

For additional background, see “Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments,” Congressional Research Service.

National Security Directive on Space Exploration Policy (2004)

A newly disclosed National Security Presidential Directive on space exploration (pdf) illustrates the broad topical scope of such directives, as well as their practical limitations.

The Bush Administration directive, issued in 2004, ambitiously called for “a sustained and affordable human and robotic program to explore the solar system and beyond” and even a “human presence across the solar system.”

The document has not been formally released to the public, and multiple requests for its disclosure have been rebuffed by the National Security Council. It was obtained and released by Wikileaks.org, a website that publishes confidential documents.

See “U.S. Space Exploration Policy,” National Security Presidential Directive (NSPD) 31, January 14, 2004.

The National Security Presidential Directive largely replicates the contents of the Bush Administration’s Vision for Space Exploration, which was announced on the same day the Directive was signed. But it has some remarkable features of its own.

For one thing, it has nothing at all to do with national security as the term is commonly understood. Although space exploration was also addressed in national security directives in previous administrations, such as the Clinton Administration’s PDD-49, in such cases it was considered along with intelligence and national security space. NSPD-31 by contrast is purely a statement of science and technology policy with no national security component. This raises the possibility that other Bush Directives, yet undisclosed, also address topics outside of the usual national security framework.

Aside from that, the Bush Directive serves as a reminder that just because a President orders an agency to perform a certain action, that doesn’t guarantee compliance. Thus, in 2004 the President directed NASA to undertake a series of robotic missions to the Moon “starting no later than 2008.” But that is not going to happen. Instead, NASA may launch the Lunar Reconnaissance Orbiter no earlier than February 2009.

Some other Bush Administration National Security Presidential Directives are available here.

Russia-Georgia Conflict, and More from CRS

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

“Russia-Georgia Conflict in South Ossetia: Context and Implications for U.S. Interests,” August 13, 2008.

“Stability in Russia’s Chechnya and Other Regions of the North Caucasus: Recent Developments,” August 12, 2008.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated July 28, 2008.

“Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,” updated July 29, 2008.

“Journalists’ Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses,” updated July 29, 2008.

“U.S.-China Counterterrorism Cooperation: Issues for U.S. Policy,” updated August 6, 2008.

“National Security Strategy: Legislative Mandates, Execution to Date, and Considerations for Congress,” updated July 28, 2008.

“Nanotechnology and Environmental, Health, and Safety: Issues for Consideration,” August 6, 2008.

“Nuclear Cooperation with Other Countries: A Primer,” August 12, 2008.

Sourcebook on the Aerospace Data Facility

A new documentary collection (pdf) provides a glimpse of the Aerospace Data Facility at Buckley Air Force Base in Aurora, Colorado, which is an operational hub for intelligence support to the U.S. military.

“The Aerospace Data Facility is a DoD information processing, analysis, relay, and test facility supporting the U.S. Government and its allies,” according to one official document.

Among other things, the ADF represents “the major U.S.-based technical downlink for intelligence satellites operated by the military, the National Security Agency and the National Reconnaissance Office.”

See “Aerospace Data Facility / Denver Security Operations Center, Buckley AFB, Colorado,” compiled by Allen Thomson, August 2008.

Senate Report Scrutinizes the State Secrets Privilege

A new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation.

The 53 page report summarizes the latest legal scholarship on the state secrets privilege, as well as the controversy that has surrounded it.

“In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage. Facing allegations of unlawful Government conduct ranging from domestic warrantless surveillance, to employment discrimination, to retaliation against whistleblowers, to torture and ‘extraordinary rendition,’ the Bush-Cheney administration has invoked the privilege in an effort to shut down civil suits against both Government officials and private parties. Courts have largely acquiesced,” the report states.

“While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, ‘[w]hat is undebatable … is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,’ and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse.”

“In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts.”

The new report includes dissenting views from several Republican members of the Judiciary Committee, who argue that the existing arrangements already strike the “right balance between openness, justice and national security.” See “State Secrets Protection Act,” Senate Judiciary Committee Report 110-442, August 1.

Another new report from the Senate Judiciary Committee addresses court-ordered secrecy, and would limit judicial authority to seal court records pertaining to public health and safety. The report describes pending legislation that “requires judges to consider the public’s interest in disclosure of health and safety information before issuing a protective order or an order to seal court records or a settlement agreement.” See “Sunshine in Litigation Act,” Senate Judiciary Committee Report 110-439, August 1.

DNI Issues Directive on IC Chief Information Officer

The Director of National Intelligence last week issued a new directive (pdf) defining the role of the Chief Information Officer (CIO) for the U.S. intelligence community (IC).

The CIO will be responsible for “developing, maintaining, and facilitating the implementation of a sound and integrated information technology architecture for the IC” and will also “oversee IC information security policies.”

See Intelligence Community Directive 500, “Chief Information Officer,” August 7, 2008.

DIA Takes on Offensive Counterintelligence

With the establishment of its Defense Counterintelligence and Human Intelligence Center (DCHC) on August 3, the Defense Intelligence Agency now has new authority to engage in offensive counterintelligence operations that seek to thwart foreign intelligence activities.

If defensive counterintelligence is checkers, then offensive counterintelligence is chess.

Unlike defensive counterintelligence, offensive counterintelligence is intended to “make something happen,” a DIA spokesman said last week (pdf). It may involve infiltration, active deception and disruption of opposing intelligence services. It is hard to do well.

“DIA joins just three other military organizations authorized to carry out offensive counterintelligence operations–the Army Counterintelligence office, the Navy Criminal Investigative Serve and the Air Force office of Special Investigations,” reported Pamela Hess of the Associated Press. See “DIA’s New Mission Adds to Intel Arsenal,” August 5.

The Defense Intelligence Agency described at length the origins and intended functions of the new DCHC in a news media briefing last week. The transcript is here.

CRS Reports Are Still Out of Bounds

When a military judge ruled last month that Salim Ahmed Hamdan, a former driver for Osama bin Laden, could be tried for war crimes, the first footnote in his July 14 opinion (pdf) was to a Congressional Research Service report. (Hamdan was convicted yesterday for material support of terrorism.)

But Military Judge Keith J. Allred, lacking an official source for the CRS analysis by Jennifer K. Elsea (with which he ultimately differed), provided a link instead (see footnote 1 on page 3) to a copy of the document on the Federation of American Scientists web site.

By doing so, the Judge simultaneously highlighted the centrality of such CRS analyses to public discourse and the strange fact that these official documents are still not approved for direct release to the public.

Perhaps he also implicitly affirmed that FAS and other public interest publishers of CRS collections are helping to compensate for that continuing policy defect by providing the online access to CRS reports that Congress has denied.

A Look at the Secret Service, and More from CRS

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

“The U.S. Secret Service: An Examination and Analysis of Its Evolving Missions,” July 31, 2008.

“Terrorism and Security Issues Facing the Water Infrastructure Sector,” updated July 28, 2008.

“FY2009 National Defense Authorization Act: Selected Military Personnel Policy Issues,” July 21, 2008.

“Veterans Medical Care: FY2009 Appropriations,” July 29, 2008.

“Annual Appropriations Acts: Consideration During Lame-Duck Sessions,” July 25, 2008.