The Rise of China’s Auto Industry

“In recent years, China has become the world’s fastest growing automotive producer,” according to a new report (pdf) from the Congressional Research Service.

“[China’s] annual vehicle output has increased from less than 2 million vehicles in the late 1990s to 9.5 million in 2008. In terms of production volume in 2008, China has surpassed Korea, France, Germany, and the United States, trailing only Japan.”

“China’s automobile industry has continued to expand despite the global economic downturn. From January to October 2009, more than 10 million vehicles were sold in China. If such growth continues, China is on its way to becoming world’s largest auto market,” the CRS said.

See “The Rise of China’s Auto Industry and Its Impact on the U.S. Motor Vehicle Industry,” November 16, 2009.

Legal Issues Surrounding Military Commissions

The role of military commissions in adjudicating the cases of suspected terrorist detainees at Guantanamo and elsewhere was critically examined in two House Judiciary Subcommittee hearings last July, the records of which have just been published.

“My concern remains,” said Rep. Jerrold Nadler (D-NY), who chaired the hearings, “that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence.”

“That is not a justice system,” Rep. Nadler said.

See “Legal Issues Surrounding the Military Commissions System,” July 8, 2009;  and “Proposals for Reform of the Military Commissions System,” July 30, 2009.

2010 Army Weapon Systems Handbook

The U.S. Army has published the latest edition of its Army Weapon Systems handbook, cataloging dozens of Army weapons with descriptive information, status updates, contractor relationships, and images.

“The systems listed in this book are not isolated, individual products,” the introduction says. “Rather, they are part of an integrated investment approach to make the Army of the future able to deal successfully with the challenges it will face.”

“We have received extraordinary funding support through wartime Overseas Contingency Operations funds, but they have only enabled us to sustain the current fight. We look forward to continued Congressional support to achieve our broad modernization goals.”

A Critical Look at Navy v. Egan

A 1988 U.S. Supreme Court decision known as Department of the Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and over access to classified information in particular.  Along with United States v. Reynolds, Curtiss-Wright, and a few other cases, Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims.  It has become a cornerstone of national security law as practiced today.

But the case has often been misunderstood and misrepresented, according to a new study (pdf) by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.

The Egan decision was prompted by a narrow statutory dispute:  Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)?  The court concluded that Congress had not intended to permit such review.

But in reaching that straightforward conclusion, “various passages in Egan strayed from this central issue and created confusion and misconceptions” about the scope of executive authority and the role of the courts, wrote Dr. Fisher.  Among such passages was a discussion of the President’s constitutional powers culminating in the statement that “Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”

Over time, Egan came to signify the notion that courts should grant the “utmost deference” — or even absolute deference — to the executive on issues of national security.  Citing Egan, one court in 1993 held that “the presumption of reviewability is entirely inapplicable in matters concerning national security.”  This is an extreme view that would exclude the courts altogether from national security affairs. “Egan does not support that interpretation,” wrote Fisher.  But there it is.

In a 2002 report on leaks of classified information, Attorney General John Ashcroft cited Egan in support of the proposition that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”  These statements are true except for the implication that such authority is exclusively the province of the executive.  The Attorney General conspicuously neglected to note the qualification in Egan which stated “Unless Congress has specifically provided otherwise….”

Recently, observed Fisher, some courts have presented a more nuanced reading of Egan.  In proceedings such as Al-Haramain and Horn v. Huddle, courts have rebuffed executive arguments for complete deference in cases where Congress has legislated its intent into statute.

Fundamentally, Fisher concludes, “Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information.”  See “Judicial Interpretations of Egan by Louis Fisher, Law Library of Congress, November 13, 2009.

Dr. Fisher will be the luncheon speaker at a day-long conference November 18 on “The State of the State Secrets Privilege” at American University Washington College of Law.

New Publications Received

A new law review article argues that government secrets can be usefully distinguished in terms of “depth”– i.e. “how many people know of their existence, what sorts of people know, how much they know, and how soon they know…. Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal.”  See “Deep Secrecy” by David Pozen, Stanford Law Review, forthcoming.

A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment.  “A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments” by H.P. Albarelli Jr. was published this month by TrineDay, which says it “specializes in releasing books that are shunned by mainstream publishers due to their controversial nature.”

Closed child welfare hearings in the District of Columbia Family Court should be opened up, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council.  Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said.  See “Opening Child Welfare Proceedings in the Family Court of the District of Columbia,” November 4, 2009.

Change at the United Nations

by: Alicia Godsberg

The First Committee of this year’s 64th United Nations General Assembly (GA) just wrapped up a month of meetings.  The GA breaks up its work into six main committees, and the First Committee deals with disarmament and international security issues.  During the month-long meetings, member states give general statements, debate on such issues as nuclear and conventional weapons, and submit draft resolutions that are then voted on at the end of the session.  Comparing the statements and positions of the U.S. on certain votes from one year to the next can help gauge how an administration relates to the broader international community and multilateralism in general.  Similarly, comparing how other member states talk about the U.S. and its policies can give insight into how likely states may be to support a given administration’s international priorities. Continue reading

Photos of Seized Weapons Highlight the Importance of Stockpile Security

by Matt Schroeder


Photos of firearms seized from criminals in Colombia are poignant reminders of the importance of strong controls on government arsenals.

The photos, which were provided to the FAS’ Arms Sales Monitoring Project by the Colombian National Police, are of firearms reportedly seized in the department of Narino from a paramilitary group called the Organizacion Nueva Generacion (New Generation Organization). The weapons include an H&K G3 assault rifle apparently diverted from the “Guardia Republicana de Peru” (Republican Guard of Peru), an Argentine-manufactured FN rifle, an Israeli Military Industries (IMI) Galil rifle bearing the initials “P.N.C” (Policia National de Colombia) and an FN FAL rifle stamped “Fuerzas Navales de Venezuela.” The only weapon that does not bear markings of a government agency is an old Interdynamic KG-99 sub-machine gun.

The document from which the photos were taken provides no additional information the source of firearms or how and when they entered the black market. Most of the weapons appear to be quite old and in poor condition. Nonetheless, they do underscore the risk of diversion from government arsenals and the need for robust stockpile security.

Continue reading

DNI Cites Progress Against Air and Sea-Based Threats

The U.S. intelligence community is making steady progress towards “an advanced state of intelligence integration and information sharing” regarding potential threats to the U.S. and its allies from the sea and the air, according to a new report from the Director of National Intelligence.

“Threats that terrorists and other illicit actors pose to the nation’s ports, waterways and airways remain persistent and grave, leaving no room for error or delay in this effort,” the report (pdf) said.

In response to such threats, a new ODNI National Maritime Intelligence Center has been established, new information sharing protocols have been put in place, and collaborative “communities of interest” have been nurtured. But “challenges remain” in both air and maritime intelligence “to overcome cultural and institutional resistance” to cooperation, particularly given the “sharply diminished” sense of urgency since 9/11.

One enduring difficulty is that “a lack of robust foreign and domestic HUMINT assets hampers the capability to detect and identify place and time of hostile or disruptive actions….”  However, the report says, “examining smuggling networks, front companies, and ‘gray’ actors and transactions has resulted in successful interdictions of people and cargo who clearly pose national security threats.”

The unclassified report did not mention any specific interdictions.  But last month, U.S. forces intercepted a German cargo ship carrying arms from Iran to Syria, according to an October 12 story in Der Spiegel.  Last week, reportedly based on a tip from U.S. intelligence, Israel seized a ship carrying weapons said to be supplied by Iran and intended for Hezbollah fighters.

The DNI report described the formidable intelligence challenges posed by the vast maritime and air domains.

“Worldwide maritime activity includes more than 30,000 ocean-going ships of 10,000 gross tons or greater,” operating under more than 150 different national flags, making tens of thousands of calls at 125 major U.S. ports each year.  Meanwhile, “there are over 43,000 fixed airfields worldwide with over 300,000 active aircraft, making the air domain a dense, complex operating environment with attendant reduced reaction time to potential airborne threats.”

“The economy’s inherent lack of resiliency to a major [trade or transportation] disruption event presents a substantial opportunity for those who seek to attack our institutions asymmetrically,” the report said.

The ultimate intelligence goal, therefore, is nothing less than “to create and maintain a persistent awareness of all aspects of passenger and intermodal cargo conveyance.  This single integrated team approach would permit 24/7 coverage of the entire transportation spectrum….”

The new report is heavy on management jargon, with lots of integration, alignment and leveraging said to be taking place.  (“ODNI remains committed to expediting horizontal intelligence integration supported by the implementation of data sharing standards that are breaking down barriers to information sharing, thereby facilitating rapid decision support.”)

Some of the “successes” touted by the report seem paltry or oversold, such as a “precedent setting conference” on piracy in the Horn of Africa last April which “drew more than 280 attendees.”  And the new ODNI National Maritime Intelligence Center is confusingly housed within the existing National Maritime Intelligence Center that also hosts the Office of Naval Intelligence.  But overall the 62-page report testifies to a level of bureaucratic churning within the intelligence community that rarely leaves a trace on the public record.

A copy of the new report was obtained by Secrecy News.  See “The Inaugural Report of the Global Maritime and Air Communities of Interest Intelligence Enterprises,” Director of National Intelligence, November 2009.

Govt Petitions Supreme Court on Background Investigations

Last year, scientists at NASA’s Jet Propulsion Laboratory thought they had successfully rebuffed a controversial government attempt to impose new background investigations on JPL employees under NASA’s interpretation of President Bush’s Homeland Security Presidential Directive 12.  A federal appeals court concurred (pdf) with the scientists that the new investigations into employee personal histories were intrusive, “open ended,” and not “narrowly tailored” to meet legitimate government interests.  The court granted a preliminary injunction exempting the scientists from the investigations into their personal backgrounds.

But last week, Obama Administration Solicitor General Elena Kagan petitioned (pdf) the U.S. Supreme Court to overturn the appeals court ruling in favor of the scientists.  That ruling, she argued, was legally in error and “casts a constitutional cloud on the background-check process.”

Each side has warned of ominous consequences if its position is not upheld.

“These investigations have a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation’s complex technical needs,” several of the JPL scientists wrote in a 2007 letter to Congress (pdf).  “Many highly talented individuals, like much of the populace, attach great value to their personal liberties.  We are Americans, after all.”

But by finding the new background investigations improper, Solicitor General Kagan contended, the appeals court’s ruling “calls into question even the most basic inquiries… that public employers undertake for prospective employees [and] appears to render suspect the most commonplace reference checks conducted by employers.”

“We are, of course, quite disappointed,” said Robert M. Nelson, a JPL scientist and lead plaintiff in the case.  “The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives,” he said last week.

The JPL scientists are contractors, not NASA employees, who work on unclassified projects.  Government contractors who are similarly situated at other agencies (including DoE and NSF) are not required by those agencies to undergo comparable background investigations under HSPD-12.  The current dispute has no bearing on the use of background investigations in the clearance process for access to classified information.

Additional information and the latest case files can be found on the plaintiffs’ website.

National Security Letters, Fossil Fuel, 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).

“National Security Letters: Proposed Amendments in the 111th Congress,” October 28, 2009.

“U.S. Fossil Fuel Resources: Terminology, Reporting, and Summary,” October 28, 2009.

“Unconventional Gas Shales: Development, Technology, and Policy Issues,” October 30, 2009.

“Electoral College Reform: 111th Congress Proposals and Other Current Developments,” November 4, 2009.

“Congressional Printing: Background and Issues for Congress,” November 5, 2009.

“Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2009,” October 29, 2009.