Presidential Claims of Executive Privilege, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, August 21, 2012

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated August 17, 2012

Iraq: Politics, Governance, and Human Rights, updated August 21, 2012

An Overview of the “Patent Trolls” Debate, August 20, 2012

STRATCOM Commander Rejects High Estimates for Chinese Nuclear Arsenal

STRATCOM Commander estimates that China has “several hundred” nuclear warheads.

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By Hans M. Kristensen

The commander of U.S. Strategic Command (STRATCOM) has rejected claims that China’s nuclear arsenal is much larger than commonly believed.

“I do not believe that China has hundreds or thousands more nuclear weapons than what the intelligence community has been saying, […] that the Chinese arsenal is in the range of several hundred” nuclear warheads.

General Kehler’s statement was made in an interview with a group of journalists during the Deterrence Symposium held in Omaha in early August (the transcript is not yet public, but was made available to me).

General Kehler’s statement comes at an important time because much higher estimates recently have created a lot of news media attention and are threatening to become “facts” on the Internet. A Georgetown University briefing last year hypothesized that the Chinese arsenal might include “as many as 3,000 nuclear warheads,” and General Victor Yesin, a former commander of Russia’s Strategic Rocket Forces, recently published an article on the Russian web site vpk-news in which he estimates that the Chinese nuclear weapons arsenal includes 1,600-1,800 nuclear warheads.

In contrast, Robert S. Norris and I have published estimates of the Chinese nuclear weapons inventory for years, and we currently set the arsenal at approximately 240 warheads. That estimate – based in part on statements from the U.S. intelligence community, fissile material production estimates, and our assessment of the composition of the Chinese nuclear arsenal – obviously comes with a lot of uncertainly and assumptions, but we’re pleased to see that it appears to fit with the “several hundred” warheads mentioned by General Kehler.

Like the other nuclear weapon states, China is modernizing its nuclear arsenal, but it is the only one of the five original nuclear powers (P-5) that appears to be increasing the size of its warhead inventory. That increase is modest and appears to be slower than the U.S. intelligence community projected a decade ago. Those who see an interest in exaggerating China’s nuclear developments thrive on secrecy, so it is important that China – and others who know – provide some basic information about trends and developments to avoid exaggerated estimates. The reality is bad enough as it is.

This publication was made possible by a grant from Carnegie Corporation of New York and Ploughshares Fund. The statements made and views expressed are solely the responsibility of the author.

Crisis in Mali, and More from CRS

New reports from the Congressional Research Service on diverse topics of current interest are provided below.  Pursuant to congressional policy, CRS is prohibited from making these documents directly available to the public.

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, August 16, 2012

Turkmenistan: Recent Developments and U.S. Interests, updated August 17, 2012

Pipeline Cybersecurity: Federal Policy, August 16, 2012

Gifts to the President of the United States, August 16, 2012

Health Insurance Exchanges Under the Patient Protection and Affordable Care Act (ACA), August 15, 2012

Crisis in Mali, August 16, 2012

JP Morgan Trading Losses: Implications for the Volcker Rule and Other Regulation, August 16, 2012

Why Some Fuel-Efficient Vehicles Are Not Sold Domestically, August 17, 2012

Armed Conflict in Syria: U.S. and International Response, updated August 20, 2012

The Palestinians: Background and U.S. Relations, updated August 17, 2012

FAS Roundup: August 20, 2012

Case dismissed based on state secret privilege, Bio agents app, new CRS reports  and much more.

From the Blogs

  • Court Dismisses Case Based on State Secrets Privilege: On August 14, a federal court dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California. The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case. The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.” The government said various aspects of the subject were too sensitive to be addressed in open court.

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Reframing the Energy Discussion: Cubic Miles of Oil

Courtesy of Shutterstock.

In 2006, the world finally surpassed an enormous benchmark: the consumption of one cubic mile of oil each year. That’s equivalent to 1.1. trillion gallons or 26 billion barrels of oil.

In the conversation surrounding energy consumption, it can be hard to keep interest and sustain any meaningful dialogue as commentators must often wade through various units and conversions in discussing new energy sources. How does a Btu compare to a kWh? How many barrels of oil does it take to produce the same amount of energy as a ton of coal? Continue reading

Court Dismisses Case Based on State Secrets Privilege

A federal court yesterday dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California.  The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case.

The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.”

The government said various aspects of the subject were too sensitive to be addressed in open court.  Last year, Attorney General Eric Holder filed a declaration asserting that several categories of information pertaining to the case were protected by the state secrets privilege and their disclosure “could reasonably be expected to cause significant harm to the national security.”

Yesterday, Judge Cormac J. Carney of the Central District of California agreed and he issued an order dismissing most of the plaintiffs’ claims.

“Further litigation,” he wrote, “would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.”

In his order, Judge Carney also reflected more broadly on the function of the state secrets privilege and its implications for individual liberties.

“The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest,” he wrote.

It follows that “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

“The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies.”

“Plaintiffs raise the specter of Korematsu v. United States… and protest that dismissing their claims based upon the state secrets privilege would permit a ‘remarkable assertion of power’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘counterterrorism’ and ‘state secrets.’ But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here.”

“The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds,” Judge Carney wrote.

The ACLU of Southern California said it would appeal the decision, the Los Angeles Times reported today.

In a September 2009 policy statement on state secrets, the Attorney General pledged to refer credible claims of wrongdoing that had been dismissed on state secrets grounds to an agency Inspector General for review.  It is unknown whether such a referral has occurred in this case, or indeed if it has ever occurred.  The Department of Justice recently refused to answer a congressional inquiry on the subject.

Gun Control Legislation, and More from CRS

Recent products of the Congressional Research Service that CRS has not been authorized to release to the public include the following.

Gun Control Legislation, August 3, 2012

El Salvador: Political, Economic, and Social Conditions and U.S. Relations, August 13, 2012

Honduran-U.S. Relations, July 25, 2012

Cuba: U.S. Restrictions on Travel and Remittances, July 24, 2012

Cyprus: Reunification Proving Elusive, August 13, 2012

Kazakhstan: Recent Developments and U.S. Interests, August 10, 2012

FAS Roundup: August 13, 2012

Congress resists efforts to reduce secrecy, U.S. strategy in Yemen, new CRS reports and much more.

From the Blogs

  • Justice Department Silent on IG Role in State Secrets Cases: The Department of Justice told Congress recently that it would not disclose the number of state secrets cases involving alleged government misconduct, if any, that have been referred to an Inspector General for investigation. Under a revised state secrets policy that was announced by Attorney General Holder in 2009, the Department committed to referring credible claims of government wrongdoing that could not be adjudicated in court because the state secrets privilege had been invoked to the Inspector General of the relevant agency for further investigation.
  • The 52 Percent Solution in Yemen: Debate has picked up on the U.S. strategy in Yemen. John Brennan, the Deputy National Security Advisor for Homeland Security and Counterterrorism, recently explained the administration’s policy, which had been accused of focusing narrowly on counterterrorism. Mark Jansson, director of Special Projects, writes that ultimately we should not get caught up in the numbers game in evaluating U.S. policy towards Yemen. More balance would be great, but balance is not the sole indicator of efficacy. What Americans and Yemenis alike need to know is whether the plan for Yemen is actually working.
  • Congress Resists Efforts to Reduce Secrecy: Ordinarily, critics of government secrecy focus their ire — and their strategy — on executive branch agencies that refuse to release certain national security-related information to the public. Steven Aftergood writes that  to an extent that is not widely recognized or understood, it is Congress that has erected barriers to greater openness and has blocked efforts to improve transparency.

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Wiretapping and Legal Ethics, and More from CRS

New reports from the Congressional Research Service that have not been released to the public include the following.

Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation, August 9, 2012

The Speech or Debate Clause: Constitutional Background and Recent Developments, August 8, 2012

FY2013 National Defense Authorization Act: Selected Military Personnel Policy Issues, August 9, 2012

Major Fiscal Issues Before Congress in FY2013, August 10, 2012

FY2013 Appropriations: District of Columbia, August 10, 2012

Newly updated editions of earlier CRS reports that Congress has also not made readily available to the public include these:

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, August 10, 2012

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, August 10, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, August 10, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, August 10, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, August 10, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, August 10, 2012

Budget “Sequestration” and Selected Program Exemptions and Special Rules, August 9, 2012

Talks at U.S. Strategic Command and University of California San Diego

By Hans M. Kristensen

It’s been a busy week with two talks; the first to the U.S. Strategic Command’s Deterrence Symposium on August 9, and the second to the Public Policy and Nuclear Threats “boot camp” workshop at the University of California San Diego on August 10.

STRATCOM asked me to talk on the question: Will advanced conventional capabilities undermine or enhance deterrence. My panel included former STRATCOM Commander General James Cartwright, former SAC CINC General Larry Welch, Assistant Secretary of Defense for Global Strategic Affairs Madelyn Creedon. The panel was chaired by Rear Admiral John Gower of the U.K. Ministry of Defense. My speech is reproduced below. The video of Panel #7 is available later at the STRATCOM web site.

UCSD asked me to speak on New Directions for U.S. Nuclear Strategy. My panel included Daryl Press, who is Associate Professor in the Department of Government at Dartmouth College, and Anne Harrington, a Postdoctoral Fellow at the James Martin Center for Nonproliferation Studies at the Monterey Institute of International Studies. A copy of my briefing slides is available here.

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