Bush Directive on Arctic Policy Stresses U.S. Sovereignty

Though many Americans might not realize it, “The United States is an Arctic nation,” President Bush declared this week, “with varied and compelling interests in that region.”

U.S. policy towards the Arctic region, which includes a portion of Alaska, was vigorously formulated in what is likely to be the Bush Administration’s last National Security Presidential Directive, NSPD-66 on Arctic Region Policy, dated January 9, 2009.

In the face of conflicting claims by the government of Canada, the directive asserts “lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region.”

Noting that the U.S. and Canada “have an unresolved boundary in the Beaufort Sea” (which “may contain oil, natural gas, and other resources”), the President directed U.S. agency heads to “take all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law.”

In the Canadian press, the new directive was described as a “forceful rebuttal of Canada’s claims of sovereignty over the Northwest Passage.”  See “Bush takes final swing at Arctic sovereignty,” National Post, January 12.

President Bush called on the U.S. Senate to ratify the Law of the Sea Treaty, which is opposed by some Senate Republicans, because, he said, it offers “the most effective way to achieve international recognition and legal certainty for our extended continental shelf.”

Although many National Security Presidential Directives are classified, and the subject matter of some of them is still completely unknown to the public, NSPD-66 was issued as an unclassified, public document.  A listing of all publicly known NSPDs is here.  A Congressional Research Service report on “Presidential Directives: Background and Overview,” updated November 26, 2008, is here (pdf).

Current, Future Justice Officials Clash Over OLC Proposal

In a revealing conflict of views between outgoing and incoming Justice Department officials, Attorney General Michael Mukasey recently told Congress that a proposal that was conceived by Prof. Dawn Johnsen to require expanded reporting to Congress concerning Justice Department Office of Legal Counsel (OLC) opinions is unconstitutional.  Prof. Johnsen has been designated by President-elect Obama as the new OLC head.

The dispute concerned “The OLC Reporting Act of 2008” (S.3501) that was introduced by Sen. Russ Feingold last September.

“The bill would require the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a statute,” Sen. Feingold explained last year.  Currently, no such notification to Congress is required, and the executive branch may silently interpret a seemingly straightforward statute as non-binding.

The Feingold bill emerged from a suggestion offered by Prof. Johnsen at an April 30, 2008 hearing on “Secret Law.”

The OLC Reporting Act, which would not require disclosure of the actual legal opinions, “strikes a sensible and constitutionally sound balance between the executive branch’s need to have access to candid legal advice… and the legislative branch’s need to know the manner in which its laws are interpreted,” Prof. Johnsen wrote in a September 15 letter with former Bush White House Associate Counsel Brad Berenson.

It’s not constitutionally sound at all, objected Attorney General Mukasey in a November 14 letter (pdf) to Congress that was disclosed this week.  The bill is unconstitutional because it improperly seeks to mandate the timing and extent of disclosure of classified information, and because it infringes on the constitutional doctrine of executive privilege, he said.

The legislation would require that Congress be notified of “many legal opinions” that fall within its terms, the Attorney General wrote.  And it would mistakenly lead legal advisers to tailor their advice in such a way as not to trigger the reporting requirements of the Act, he warned.

Accordingly, Attorney General Mukasey said, “the Department strongly opposes this legislation, and if it were presented to the President, his senior advisers would recommend that he veto it.”

But the Department’s strong opposition to the bill is likely to fade very soon, considering that one of the new President’s “senior advisers” is also one of the bill’s authors.

The Minot Investigations: From Fixing Problems to Nuclear Advocacy

The second report from the Schlesinger Task Force goes beyond fixing nuclear problems to promoting new nuclear weapons.

By Hans M. Kristensen

For nuclear weapon advocates, the Minot incident in August 2007, where the Air Force lost track of six nuclear-armed cruise missiles for 36 hours, was a gift sent from heaven. No other event short of a nuclear attack against the United States could have provided a better opportunity to breathe new life into the declining nuclear mission.

But where is the line between fixing problems and advocacy?

Although the latest report from the Secretary of Defense Task Force on DOD Nuclear Weapons Management, also known as the Schlesinger report, contains many reasonable recommendations to ensure that the Services and agencies are capable of fulfilling the nuclear mission, it is also sprinkled with recommendations that have more to do with promoting nuclear weapons.

And it makes some remarkable claims about the deployment of nuclear weapons in Europe. Continue reading

U.S. Spending on Nuclear Weapons Exceeds $52 Billion

Most U.S. Government spending on nuclear weapons-related programs is unclassified.  But it is functionally secret since such spending is widely dispersed across many programs in several agencies and it is not formally tracked or reported.

A new study prepared for the Carnegie Endowment for International Peace estimated that the cost of U.S. nuclear weapons and weapons-related programs exceeded $52 billion last year.

“That’s a floor, not a ceiling,” said Stephen I. Schwartz, who led the study with Deepti Choubey. The estimate does not include the costs of classified nuclear weapons programs or nuclear-related intelligence programs, among other limiting factors.

The $52 billion figure far exceeds the total annual budget for international diplomacy and foreign assistance ($39.5 billion) and comprises roughly 10% of all national defense spending.

Because nuclear weapons costs are not officially tracked, it has been difficult or impossible to perform “cost-benefit” analyses of nuclear policies or to debate priorities among competing nuclear weapons programs.  Yet such priorities naturally emerge, undebated.

Thus, the majority of nuclear weapons spending (55.5%) is allocated towards upgrading, operating and sustaining the U.S. nuclear arsenal.  A much smaller fraction (10%) is devoted to controlling the spread of nuclear weapons and technology, the study found.

“The disparity suggests that preserving and enhancing nuclear forces is far more important than preventing nuclear proliferation,” said Mr. Schwartz.

The authors urge that a formal accounting of nuclear weapons spending be conducted by the government and reported to Congress and the public in order to provide greater clarity.  And they recommend that an increased fraction of nuclear security spending be directed towards preventing nuclear proliferation.

The full report and the underlying data are available from the Carnegie Endowment.  See “Nuclear Security Spending: Assessing Costs, Examining Priorities,” by Stephen I. Schwartz with Deepti Choubey, January 2009.

Defusing Armageddon: A History of NEST

“In May 1974, the U.S. government received its first serious nuclear threat,” recalls author Jeffrey T. Richelson.  “A letter demanding that $200,00 be left at a particular location arrived at the FBI. Failure to comply, it claimed, would result in the [detonation] of a nuclear bomb somewhere in Boston.”

The threat was soon exposed as a hoax, but it prompted the creation of a then-secret organization originally known as the Nuclear Emergency Search (later: Source) Team, or NEST, which would be responsible for the “search and identification of lost or stolen nuclear weapons and special nuclear materials, bomb threats, and radiation dispersal threats.”

The history of that organization is unveiled by Richelson in his new book “Defusing Armageddon: Inside NEST, America’s Secret Nuclear Bomb Squad” (W.W. Norton, January 2009).

The mission of NEST is inherently gripping, though its story is not consistently dramatic.  It is full of false alarms and potential worst-case scenarios that thankfully never materialize.  With the cooperation of some NEST veterans, Richelson provides a painstakingly thorough account, including a previously unpublished list of 103 nuclear extortion threat events from 1970-1993.

Some of NEST’s exploits were front-page news in their time.  I thought I had read (or written) everything worth reading about the 1978 reentry of the Soviet nuclear reactor-powered Cosmos 954 satellite, which rained radioactive debris over northwest Canada.  But Richelson, an exceptionally skilled researcher who is a fellow at the National Security Archive, uncovered some interesting and unfamiliar accounts of that episode, known as Operation Morning Light, in which more than 100 NEST personnel participated.

The uncertain potential for nuclear terrorism in the post-9/11 era, including the possibility of deliberate dispersal of radioactive material in a “dirty bomb,” poses increased challenges to NEST’s capacity to quickly detect and respond to such events.

“But like many forms of insurance or protection that may never be needed or may not protect against all threats, NEST is a capability that, had it not been established in 1974, would have been considered essential to create in 2001,” Richelson concludes.

Export Controls Now Threaten National Security, Panel Says

Science and technology export controls that are rooted in Cold War geopolitical realities are now both anachronistic and counterproductive, a report from the National Research Council said last week.

“As currently structured, many of these controls undermine our national and homeland security and stifle American engagement in the global economy, and in science and technology,” the report said.

The authors called on the Obama Administration to promptly revise export control policies by issuing an executive order that affirms “a strong presumption for openness.” They urged that economic competitiveness be factored into export control decisions, that controls be reviewed annually and rescinded when they can no longer be justified, and that new procedures be established for adjudicating disputes. Perpetuation of existing policies, the report warned, would be “a self-destructive strategy for obsolence and declining economic competitiveness.”

The report makes a compelling case that current export control procedures and visa policies for foreign scientists are arbitrary, incoherent and even dangerous.  (Perhaps not coincidentally, export controls have also proved ineffective in preventing transfers of sensitive military technologies to Iran, as the Washington Post reported on January 11.)

By imposing ill-founded restrictions on technology exports, the report says the U.S. government not only reduces U.S. economic vitality but paradoxically stimulates sources of competing technology abroad.  “We are, in effect, actively nurturing foreign competitors for our own goods and services.”

The authors endorse the need to exercise controls on weapons, narrowly defined, as well as on classified technologies, and other particularly sensitive systems.  But they say any control on other technologies should be subject to review and removal every twelve months unless an affirmative case can be made to continue it for another year.

Visa policy is also seriously twisted, they explain, inhibiting collaboration with foreign experts and absorption of foreign students.  “Current law has the perverse effect of permitting foreign students to enter the United States only if they can prove to a consular officer’s satisfaction that they will take what they learn home with them…. [A]nyone who admits that he or she might want to stay in the United States and contribute to this country’s technological competitiveness must — by law — be denied entry.”

The report’s critique of controls on science and technology will seem familiar to students and critics of classification policy.  The outmoded premises, the unintended consequences and the sustained failure to achieve meaningful reform are common to both sets of problems.  And just as lists of technologies subject to export controls are infrequently updated so as to remove obsolete items from unnecessary controls, a large fraction of agency classification guides likewise go unreviewed, thereby perpetuating overclassification.

But while acknowledging that “the classification system needs an intensive review and overhaul,” the authors add that “that is not the subject of this report.”

The report criticizes “the marked inability of recent Congresses to address this issue” and therefore directs its recommendations to the incoming Obama Administration.  As if to confirm the authors’ skepticism about Congress, the House Science and Technology Committee said in a press release that the Committee “will be examining” the new report closely “over the coming months.”  But the authors aren’t asking for further examinations.  They want their recommendations implemented “as one of the first orders of business in January 2009.”

See “Beyond ‘Fortress America’: National Security Controls on Science and Technology in a Globalized World,” National Research Council, January 2009.

Home Energy Retrofits and Green Jobs for the Stimulus Package

FAS has created two energy‐efficiency proposals for a potential economic stimulus package. The first is a straightforward expansion of the DOE Weatherization Assistance Program, which has delivered significant results in carbon reduction and energy efficiency but is starved of resources. The second is a new program of grants for point‐of‐sale home energy retrofits loosely based on the Weatherization model. Including this program in a stimulus package would reduce US carbon emissions, provide green jobs in the construction industry, and increase the value of US homes. Continue reading

Criminal Investigation of CIA Video Destruction is “Ongoing”

The destruction by Central Intelligence Agency officials of videotapes showing the interrogation of suspected terrorists is the subject of “an ongoing criminal investigation” that is expected to conclude in the near future, according to a prosecution official.

“Investigators are now in the process of scheduling interviews with the remaining witnesses to be interviewed in this investigation,” wrote John H. Durham, Acting U.S. Attorney for the Eastern District of Virginia, in an affidavit (pdf) late last month.  “Based on the investigative accomplishments to date, we anticipate that by mid-February 2009, and no later than February 28, 2009, we will have completed the interviews.”

His remarks came in the course of a Freedom of Information Act lawsuit brought by the James Madison Project for documents pertaining to the CIA videotape destruction.  The government asked for a stay of the FOIA proceedings until witness interviews are completed.  At a hearing on January 6, the request for a stay until February 28, 2009 was granted by the court, said attorney Mark S. Zaid, director of the James Madison Project.

Key details of the pending criminal investigation have been redacted from Mr. Durham’s affidavit, including the number of witnesses interviewed and the volume of documents examined to date.  But the affidavit does provide a sense of the level of activity involved, indicating that “a considerable portion of the work to be done in connection with the investigation has already been completed.”

Mr. Durham noted that “in many instances,” delays have resulted from witness requests for legal representation and the need to get witness attorneys cleared.  In some cases, the government officials involved have retired and have been “read out” of the highly compartmented intelligence programs in question, and it has taken additional time to have their credentials reinstated, he said.

A copy of the December 31, 2008 CIA motion for a stay, with Mr. Durham’s affidavit, is here.  The destruction of CIA interrogation videotapes, which occurred in 2005, was reported in the New York Times on December 7, 2007.

CIA Did Provide Bay of Pigs Files to Nixon, Archives Says

Updated below.

The Central Intelligence Agency did provide a copy of intelligence files relating to the Bay of Pigs to President Nixon in response to his request, an official of the National Archives and Records Administration said yesterday.  He said that the statement to the contrary in Secrecy News on January 5, citing the new book “Family of Secrets,” was in error.

“The CIA did not refuse the Nixon administration’s request for records on the Bay of Pigs and other topics,” John Powers of the National Archives said.  What happened, rather, is that “[Director of Central Intelligence Richard M.] Helms insisted that if the President wanted these records, he would only give them to the President himself.”

“There is a fascinating Oval Office taped conversation of this meeting in October 1971 that is publicly available.  You can hear Helms putting the papers down on Nixon’s desk,” Mr. Powers said.

He identified the conversation as tape number 587-7 dated October 8, 1971.  “Helms enters during [Ehrlichman’s] briefing and they quickly change the topic, then get down to the issue of the papers.”

Mr. Powers added that the CIA papers provided by Mr. Helms to President Nixon are contained in Boxes 36 and 37 of the John D. Ehrlichman files at the Nixon Presidential Library.

Mr. Powers said that some of the material may have been declassified and released since he departed from the Nixon Project nearly two years ago.  “But my recollection is that most of the two [Ehrlichman] boxes were still classified. They are awaiting a researcher to file a Mandatory Declassification Review request.”

Update: Audio tape 587-7 from October 8, 1971 can be downloaded here, courtesy of Prof. Luke A. Nichter of Tarleton State University-Central Texas and Nixontapes.org. An outline of the taped conversation is posted here (pdf).

Mumbai Attacks, Official Secrets, and Soviet Centrifuges

The Congressional Research Service has issued — but has not publicly released — a new report on “Terrorist Attacks in Mumbai, India, and Implications for U.S. Interests” (pdf), December 19, 2008.

The history of official secrets legislation in the United Kingdom is set forth in a new memorandum (pdf) from the UK House of Commons Library, which also provides background on notable cases involving unauthorized disclosures of classified government information (flagged by Docuticker.com).  See “Official Secrecy,” December 30, 2008.

The challenges and benefits of improving intelligence sensor data integration are discussed in a new joint report from the Defense Science Board and the Intelligence Science Board.  See “Integrating Sensor-Collected Intelligence” (pdf), November 2008.

A 1957 account (pdf) of centrifuge research in the Soviet Union by Austrian physicist Gernot Zippe, translated (and partially redacted) by the Central Intelligence Agency, is now available online. See “The Problem of Uranium Isotope Separation by Means of Ultracentrifuge in the USSR,” 8 October 1957.