Islamic Finance, and More from CRS

Other new and updated reports from the Congressional Research Service obtained by Secrecy News include these (all pdf).

“Islamic Finance: Overview and Policy Concerns,” July 29, 2008.

“Presidential Advisers’ Testimony Before Congressional Committees: An Overview,” updated July 16, 2008.

“China’s Foreign Policy: What Does It Mean for U.S. Global Interests?,” July 18, 2008.

“Navy DDG-1000 Destroyer Program: Background, Oversight Issues, and Options for Congress,” updated July 15, 2008.

“A Parliamentary-Style Question Period: Proposals and Issues for Congress,” July 29, 2008.

Retroactive Immunity, and More from CRS

Additional reports from the Congressional Research Service that are newly available online include these (all pdf):

“Department of Defense Fuel Costs in Iraq,” July 23, 2008.

“The Global Nuclear Detection Architecture: Issues for Congress,” July 16, 2008.

“Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” updated July 23, 2008.

“Intelligence Reform at the Department of Energy: Policy Issues and Organizational Alternatives,” July 28, 2008.

“Retroactive Immunity Provided by the FISA Amendments Act of 2008,” July 25, 2008.

As useful as some CRS reports are, they are rarely if ever the last word on any given subject. The new CRS report on retroactive immunity and the FISA Amendments Act, for example, does not encompass the challenging constitutional questions discussed by Glenn Greenwald in this ACLU blog entry.

Disabled Intel Satellite Restored to Operation by NRO

A U.S. intelligence satellite that had ceased to function was recently restored to operation by engineers from the National Reconnaissance Office and its industry affiliates, the NRO said.

The episode was first publicly described last month in a glossy two-page NRO brochure (pdf), which simply said: “Technical experts from both the NRO and industry recently performed extraordinary engineering on the ground that returned a non-operating satellite to full operation.” See “National Reconnaissance Office Accomplishments,” July 2008.

Secrecy News asked NRO spokesman Rick Oborn to elaborate on the statement in the promotional brochure. (“I didn’t know anyone actually read that,” he said.)

He said the action occurred around “one and a half or two months ago,” after the satellite in question had been “non-responsive for a while.”

It was a “very interesting and pretty extraordinary” turn of events and “much to everybody’s semi-surprise,” satellite operation was restored.

What kind of satellite was it? “I can’t tell you that,” he said.

When was it launched? “That would reveal too much.”

How long was the satellite non-operational? “I don’t think I’m going to tell you.” And he didn’t.

Mr. Oborn said that NRO had prepared a classified account of the matter which was circulated in the intelligence community and to Congress.

The story shows, he said, that “we’ve got some really smart people doing the job.”

NRC Proposes to Increase Openness on Security Info

Rather unexpectedly, the Nuclear Regulatory Commission is asking for public comment on whether and how it should disclose more information on the security of nuclear power plants and other facilities.

“We view nuclear regulation as the public’s business and believe it should be transacted as openly and candidly as possible,” said NRC Executive Director of Operations Bill Borchardt.

Among other things, the NRC wants to know what currently undisclosed information members of the public would like to have released: “What specific details would increase your level of satisfaction in our regulatory oversight of licensed facilities?”

The NRC published a request for comment in the Federal Register on July 29 (pdf), along with related background material (pdf).

It is practically a law of bureaucratic physics that government agencies do not spontaneously seek to become more transparent and accountable absent some significant change in personnel or other triggering event.

According to David Lochbaum, a nuclear safety engineer with the Union of Concerned Scientists, the triggering event in this case was congressional outrage at the NRC’s concealment of a major “nuclear safety event” in 2006 at the Nuclear Fuel Services plant in Erwin, Tennessee.

In that case, approximately 35 liters of highly enriched uranium solution leaked and spilled, creating the possibility of a criticality accident, i.e. an uncontrolled chain reaction. Yet “NRC failed to notify the public or Congress for 13 months regarding this serious incident,” complained Rep. John Dingell in a July 3, 2007 letter (pdf) to NRC Chairman Dale E. Klein.

“We call on NRC to make every effort to withhold from public view only those documents that contain security sensitive information, and restore to the public all other documents that have been withheld….,” Rep. Dingell wrote last year.

The current NRC request for public comment on ways to increase openness, Mr. Lochbaum told Secrecy News, “is the agency’s bureaucratic effort to extricate themselves from the hole they dug.”

In 2003 congressional testimony (pdf), Mr. Lochbaum described the NRC’s past refusal to engage with outside experts and public interest organizations on security policy.

“The net effect of the agency’s actions is to exclude the public from intervening on security issues in specific licensing cases and also to exclude the public from participating, even in the limited capacity of merely expressing concerns, in security policy discussions,” Mr. Lochbaum testified at that time.

ACLU Seeks to Intervene in FISA Court Proceedings

The American Civil Liberties Union is petitioning the secretive Foreign Intelligence Surveillance Court for leave to participate in future proceedings regarding the constitutionality of government procedures under the recent FISA Amendments Act, which expanded government authority to conduct intelligence surveillance.

The government opposes the ACLU petition (pdf). Justice Department attorneys wrote in a July 29 opposition motion (pdf) that since the relevant procedures are classified, “there is nothing that the ACLU could contribute to the Court’s resolution….”

The government’s opposition is misplaced, the ACLU replied yesterday (pdf), noting that it does not seek access to classified information, but only wishes to address the constitutionality questions that are before the Court.

“Because the FISA Amendments Act has such sweeping implications for the rights of U.S. citizens and residents, any consideration of these issues should be adversarial and as informed and transparent as possible,” the August 5 ACLU reply stated.

“This Court should not issue a secret opinion after hearing secret arguments — and from only one side,” the ACLU reply said. (I am mentioned in a footnote.)

In a separate proceeding, the ACLU is also challenging the constitutionality of the FISA Amendments Act in federal district court.

See “ACLU Challenges Unconstitutional Spying Law.”

The pleadings submitted to the FISA Court are also copied here.

While it isn’t Jarndyce v. Jarndyce, the famously interminable lawsuit in Dickens’ Bleak House, the current ACLU proceeding before the FISA Court is, strangely enough, Jaffer v. Jaffer.

The lead attorney on the ACLU petition is the estimable Jameel Jaffer, director of the ACLU’s National Security Program. Among the Justice Department attorneys opposing the ACLU petition is Jamil N. Jaffer, Counsel to the Assistant Attorney General.

Army Issues New Regulations on “Biological Surety”

U.S. Army personnel who act in an aggressive or threatening manner towards other people would be denied access to toxic or lethal biological agents under newly revised regulations (pdf) that were issued by the Army last week.

Other potentially disqualifying personality traits include: “arrogance, inflexibility, suspiciousness, hostility,… and extreme moods or mood swings,” according to the new regulations. See “Biological Surety,” Army Regulation 50-1, 28 July 2008.

The late Fort Detrick scientist Dr. Bruce E. Ivins retained his security clearance and his laboratory access through July 10, the Washington Post reported today, despite allegations of erratic behavior and the fact that he was under FBI suspicion in connection with the 2001 anthrax attacks. The credibility of some of those allegations regarding Ivins’ behavior, however, is itself open to question, writes Glenn Greenwald in Salon today.

GAO and Intelligence Oversight

The Government Accountability Office is among the most potent and productive tools of government oversight available. Perhaps for that reason, U.S. intelligence agencies have been reluctant to cooperate with GAO investigations.

Sen. Daniel Akaka introduced legislation last year to reaffirm GAO authority to investigate intelligence agency activities, and that legislation was the subject of a Senate hearing in February. All of the witnesses, including myself (pdf) and then-GAO Comptroller General David M. Walker (pdf), urged an increased role for GAO in intelligence oversight.

See the record of the February 29, 2008 hearing before the Senate Homeland Security and Governmental Affairs Committee on “Government-Wide Intelligence Community Management Reforms.”

As of March 2008, there were 1,000 GAO employees with Top Secret security clearances out of 3,153 total staff. Of those, 73 held SCI (“sensitive compartmented information”) clearances for access to intelligence information, according to a GAO letter supplied for the hearing record (pdf).

A bill adopted last week in the House, called the “Government Accountability Office Improvement Act” (HR 6388) did not explicitly address intelligence oversight by GAO.

New Details on the National Cyber Security Initiative

Almost everything about the Comprehensive National Cyber Security Initiative (CNCI), established by National Security Presidential Directive 54 and Homeland Security Presidential Directive 23, is classified.

But following a classified March 2008 hearing on the subject, Senators Joe Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee teased out a few unclassified details about the effort.

The response (pdf) includes information on the National Cyber Security Center, how privacy will be protected under the CNCI, how success of the initiative will be measured, and how the Department views the private sector’s role in the initiative,” the Senators noted in a news release. “The Department chose to redact information relating to contracting at the National Cyber Security Division (NCSD). The senators have asked DHS explain their reasons for the redactions.”

See also “DHS stays mum on new ‘Cyber Security’ center” by Stephanie Condon, CNET News, July 31.

And see, relatedly, the record of a May 21, 2008 hearing before the House Homeland Security Committee on “Implications of Cyber Vulnerabilities on the Resilience and Security of the Electric Grid” (pdf).

DoJ National Security Division Oversight Initiative

The Department of Justice National Security Division (NSD) “has dramatically broadened the scope of its national security oversight role,” according to a Department news release.

“The National Security Division plays a vital role in ensuring that national security investigations are conducted properly and with respect for the civil liberties and privacy interests of Americans,” said Matt Olsen, Deputy Assistant Attorney General for the Office of Intelligence. “Our enhanced oversight efforts over the past year represent a solid foundation from which we will continue to build as we work with the FBI and other intelligence agencies to achieve this goal.”

The news release is silent on the results, if any, of the new oversight reviews performed by NSD personnel.

But Division spokesman Dean Boyd told Secrecy News generally that “These reviews were designed to identify compliance issues and they have served that purpose. Where they have identified issues, the reviews have helped provide the factual basis to take appropriate follow-up action.”