Podcast “A Conversation with an Expert,” Featuring Dr. Robert S. Norris, Part 1: 66th Anniversary of the Atomic Bombing of Japan

Dr. Norris’ biography of General Leslie Groves, Racing for the Bomb: General Leslie R. Groves: The Manhattan Project’s Indispensable Man

Listen above to a special edition of FAS Podcast “A Conversation with an Expert,” featuring Los Alamos native Charles P. Blair (FAS Director of Terrorism Analysis Project) interviewing Dr. Robert Standish Norris, Senior Fellow for Nuclear Policy at FAS.

In the first installment of this series, Dr. Norris discusses the personalities behind the Manhattan Project, the lasting lessons from the atomic bombings ending World War II and President Obama’s Nuclear Posture Review.

Download the podcast here.

To read the podcast transcript, click here (PDF).

Sunshine in Litigation Act Reported in Senate

A bill that would curb the ability of courts to impose secrecy orders on public health and safety information was favorably reported by the Senate Judiciary Committee last week.  See the report (pdf) on the Sunshine in Litigation Act of 2011, August 2, 2011.

“Court secrecy prevents the public from learning about public health and safety dangers,” the Committee report said.  “Over the past 20 years, we have learned about numerous cases where court-approved secrecy, in the form of protective orders and sealed settlements, has kept the public in the dark about serious public health and safety dangers.”

Such cases, many of which are cataloged in the report, have included “complications from silicone breast implants, adverse reactions to a prescription pain killer, ‘park to reverse’ problems in pick-up trucks, and defective heart valves.”

“This problem most often arises in product liability cases,” the report said. “In exchange for  monetary damages, the victim is often forced to agree to a provision that prohibits him or her from revealing information disclosed during the case.”  As a result, “the public remains unaware of critical health and safety information that could potentially save lives.”

To address the problem, the bill would require judges to consider the public’s interest in disclosure health and safety information before issuing a protective order prohibiting its disclosure.

The bill, which has been introduced repeatedly without success since 1994, was opposed by most Committee Republicans.  (Senators Grassley and Graham supported it.)

In a minority statement appended to the report, the Republican Senators said the bill was unnecessary and would be counterproductive.

“Without the certainty that a protective order will be upheld, litigants will raise significantly more objections to litigation discovery in order to protect confidential information.  Parties will be less willing to submit to discovery if they believe information will be disclosed to the public,” the dissenting Senators wrote.

“This bill would simply provide a tool to trial lawyers to conduct fishing expeditions and file frivolous lawsuits with impunity,” they said.

The bill was also opposed by the American Bar Association, who said the proposal was unwarranted and burdensome.

New Edition of Richelson’s “U.S. Intelligence Community”

A new edition of Jeffrey Richelson’s encyclopedic work on “The U.S. Intelligence Community” (Westview Press, July 2011) has just been published.

The book provides a uniquely synoptic view of the structure and functions of the massive U.S. intelligence bureaucracy.  Descriptive rather than prescriptive, the book serves best as a guide to some of the more obscure details of intelligence organizations, code names and procedures.

I provided a blurb for the book, which I have regularly found useful.  But it may be pointed out that the original edition of this work pre-dated the World Wide Web, and the latest (sixth) edition retains something of a pre-web sensibility.  If, for some reason, you wanted to know when the now-defunct National Imagery and Mapping Agency was established, Richelson could tell you.  But so could Wikipedia.  And while the new volume includes a list of Intelligence Community Directives, a directive (ICD 114) on GAO access to intelligence information that took effect June 30, 2011 was too recent to be included.

On the whole, however, “The U.S. Intelligence Community” benefits from Richelson’s meticulous research, his dispassionate presentation, and his robust sourcing, all of which make it an invaluable reference.

Update: It may be an error on my part to refer to the National Imagery and Mapping Agency as “defunct.” Although there is no longer an organization by that name, the former NIMA was redesignated in FY2004 as the National Geospatial-Intelligence Agency (NGA), which of course remains fully functional.

Wanted: A New CRS Director

Four months after the retirement of the previous director of the Congressional Research Service (CRS), Daniel Mulhollan, no successor has been named.  Today, the Library of Congress posted a solicitation on USA Jobs seeking applicants for the position of CRS Director.

“A successful candidate for this position should have thorough, substantive knowledge of the Congress as an institution and its operations.  The candidate should have experience interacting with Members of Congress and their staffs, and should possess first-hand knowledge of congressional decision-making, processes, and procedures,” the job announcement said.

Anyone with ideas of opening up CRS to interactions with the larger world would not be welcome.

Applicants “should have a strong desire to work exclusively for Congress,” the announcement said, reflecting the legacy view that CRS should not be responsive to anyone but Congress, and should not even make non-confidential CRS publications available to the public.

Recent CRS reports that are not publicly available from CRS include the following (all pdf).

“Suicide, PTSD, and Substance Use Among OEF/OIF Veterans Using VA Health Care: Facts and Figures,” July 18, 2011

“The State of Campaign Finance Policy: Recent Developments and Issues for Congress,” July 18, 2011

“Fairness Doctrine: History and Constitutional Issues,” July 13, 2011

“Chinese Tire Imports: Section 421 Safeguards and the World Trade Organization (WTO),” July 12, 2011

“State, Foreign Operations, and Related Programs: FY2012 Budget and Appropriations,” July 22, 2011

“The Republic of South Sudan: Opportunities and Challenges for Africa’s Newest Country,” July 25, 2011

“Critical Infrastructures: Background, Policy and Implementation,” July 11, 2011

“National Security Letters: Proposals in the 112th Congress,” June 30, 2011

We Need Clean Energy R&D: Where are the Investors?

By Carrie R. Williams, FAS Intern

There is broad consensus that clean energy investments are critical to the long term stability, security and economic welfare of the United States.  Rep. Paul Tonka (D-NY) recently said, “We cannot cut our way to number one.  If we are to stay competitive as a nation in the long term, we must invest in new technologies, clean energy and job creation.”  But who will make the investment?

Globally, in 2010 governments invested more than $5 billion in renewable energy research and development (R&D).   By comparison, the United States invested $5 billion for all energy R&D during the same period.

In FY2012, the total proposed budget for the U.S. Department of Energy (DOE)—the lead financial supporter of energy R&D in the United States—is  $29.5 billion, with $3.2 billion going to the Office of Energy Efficiency and Renewable Energy (EERE) and $550 million for Advanced Research Projects Agency – Energy (ARPA-E).  This would represent an 11.8% increase over FY2010.  However, the House of Representatives is seeking to terminate ARPA-E and decrease EERE funding by $786.3 million for FY2012—drastically cutting the clean energy R&D budget of the federal government.

Within the DOE, EERE and ARPA-E hold the bulk of the clean energy R&D budget.  The EERE mission focuses on strengthening the United States’ energy security, environmental quality and economic vitality through public-private partnerships.  This office seeks to accomplish this mission by financially supporting organizations that work to enhance energy efficiency and productivity and/or bring clean, reliable and affordable renewable energy technologies into the marketplace.  Modeled on the DARPA funding framework, which has funded basic research to create the computer, among other technologies, ARPA-E funds high-risk, high-reward energy ventures.  Created in the America COMPETES Act, ARPA-E’s mission is to fund innovative energy technology projects with the potential to reduce foreign energy imports, cut energy-related greenhouse gas emissions, and improve efficiency across the sector.  For example, in the first round of proposals ARPA-E funded projects related to axial-flow wind turbines and crystalline silicon wafers.

Additional energy R&D and early commercialization funding is also provided through tax benefits, grants, loans and contracts created by the American Recovery and Reinvestment Act (ARRA) of 2009.  This stimulus bill created $260 billion in energy tax credits for companies and consumers, with the goal of improving the market penetration and share of efficient, clean energy technologies. However, these tax credits either have expired or will expire in 2011.

Along with tax credits, DOE also received $1.4 billion in supplemental loans, grants, and contracts for R&D which is distributed between the Office of Science, fossil energy research and development, general science and research activities and the Innovative Technology Guaranteed Loan Financing programs.

With the ARRA money ending and the DOE clean energy R&D budget likely to shrink, researchers and early commercial investors must look to alternative sources of funding and capital.

What are their options?

Chief amongst the likely energy R&D funders will be: private investors both domestic and foreign, universities, and big corporations.

In 2010, venture investment in clean energy companies rose to $5.1 billion in the United States, 23% of all venture capital investment for the year.  Meanwhile, the United Nations Environment Programme (UNEP) reports that in 2010, renewable energy investment worldwide rose to $211 billion.  While the majority of this funding goes to finance large scale deployoment projects rather than R&D or early commercialization activities, the level of financing indicates there is great interest in renewable and clean energy technologies as good monetary investments.

Large corporations that rely heavily on fossil fuels are beginning to turn to renewable and sustainable energy sources; while not a traditional source of clean energy investment, they are likely to prove to be a valuable source of R&D and commercialization funding.  Google – a company whose data centers uses 0.01% of the world’s total electricity consumption in 2010– is looking to invest $350 million in the renewable energy industry.  According to Google Green, Google has cofounded the Climate Savers Computing as well as joined The Green Grid.  These two groups are dedicated to improving efficiency and sustainability standards for computers and data centers around the world in order to reach a goal of a size zero carbon footprint. Big corporations are looking to reduce their reliance on foreign oil and reduce their impact on the environment; moreover, the cash funding available to many large firms – especially those in the technology sector – provide clean energy R&D entrepreneurs with the support needed to commercialize and develop bigger and better things in the future.

With federal funding likely on the decline, a larger percentage of energy R&D responsibilities may also fall to research universities in the U.S., including internationally recognized public universities such as Colorado State University (CSU), which has programs and researchers looking into alternative fuels, clean engines, solar energy production capabilities, “smart” grid technology, wind engineering, water resources and much more.  However, in the current weak economy, public universities – even those with the best programs and most brilliant researchers – face a high risk of budget cuts that impact hiring and merit scholarships to attract the best talent, as well as investments in laboratory facilities and new research projects.

Private universities such as Massachusetts Institute of Technology (MIT) make significant contributions to the clean energy R&D industry through research and patents as well as financial opportunities.  In 2008, Transformative Integrated Power Structure (TIPS) was developed by electrical engineers at MIT to increase the efficiency of power conversion in semiconductors, which will be cr.  TIPS has been patented and commercialized by a start-up, Arctic Sand after testing proved it reduced power losses by 50-75%.  Arctic Sand was able to capitalize on MIT intuitive research to reach out to the core market of data centers as a way to increase energy efficiency where it is needed the most.

With the United States facing the largest budget deficit it has ever seen, the federal government is committed to cut spending and reduce the deficit over the next 10 years by $1.5 trillion.  The clean energy sector can no longer depend upon federal government funding and must reach out to alternative and even unconventional sources for development support.  Reaching out to domestic and foreign investors, university led R&D and commercialization ventures, and corporate funding all have a role to play.

As Mike Bowlin, chairman and CEO of ARCO said in 1999, “We’ve embarked on the beginning of the last days of the age of oil.  Embrace the future and recognize the growing demand for a wide range of fuels or ignore reality and slowly – but surely – be left behind.”  The United States cannot afford to be left behind when the reality of federal funding slips away.  The country, its clean energy entrepreneurs, and its investors must continue to push forward the state of clean energy technology and market penetration before it’s too late.

Is Unauthorized Receipt of Classified Information a Felony?

Could the unauthorized receipt of classified information be a felony?  Judge Leonie M. Brinkema made that startling claim in passing in a July 29 memorandum opinion (pdf) in the case of suspected leaker Jeffrey Sterling that was unsealed yesterday.  But her statement is almost certainly a misunderstanding and a misrepresentation of the law.

Judge Brinkema’s memorandum opinion, first reported and released by the New York Times, was written to substantiate an order issued last week that limited the scope of testimony of Times reporter James Risen in the upcoming trial of Mr. Sterling, and excused Mr. Risen from identifying his source, who the prosecution says was Mr. Sterling.  The newly released opinion affirmed the existence of a qualified reporter’s privilege which protects a journalist’s confidential relations with a source under some circumstances.

But astonishingly, in her explanation of why certain remarks previously made by Mr. Risen to a third party would not be considered hearsay and could be admitted at trial, Judge Brinkema wrote (at page 25):

“Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e).”

This seems quite wrong.  The espionage statutes including 793(e) are notoriously ambiguous and susceptible to multiple, conflicting interpretations, but no one has ever read them as Judge Brinkema did.  Section 793(e) deals with unauthorized transmission of classified information;  contrary to her assertion, it does not prohibit unauthorized receipt at all.

Judge Brinkema offered further support for her claim:  “see U.S. Sentencing Guidelines Manual § 2M3.3 (providing a base offense level 29 for convictions for the ‘Unauthorized Receipt of Classified Information.’),” she wrote.

But upon inspection, that citation does not hold up either.  Section 2M3.3 provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g; 18 USC 798; and 50 USC 783), one of which — 50 USC 783b — does indeed concern unauthorized receipt of classified information.  But that one applies only to agents or representatives of a foreign government, or to members of a Communist organization.

In other words, unless Mr. Risen is a foreign agent or a Communist, there is no statute that specifically prohibits him from receiving classified information without authorization.  There just isn’t.

(Footnote 6 of the new opinion adds:  “The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.”  The nature of the supposed criminal liability or the proposed immunity was not spelled out.  Nor, of course, has Mr. Risen actually been charged with any offense.)

Judge Brinkema got it wrong, I believe.  That can happen.  The point is incidental to her larger argument, but unfortunately it adds new confusion to an area of the law that is already complicated and contested.  Ideally, one hopes that she would see fit to correct the record.

OLC Opinion Notes Role for Congress in Classification

A newly disclosed opinion (pdf) of the Department of Justice Office of Legal Counsel (OLC) concludes that if information gathered in the course of surveillance under the Foreign Intelligence Surveillance Act (FISA) is used to revoke an individual’s security clearance, then that individual is generally entitled to receive notice of the information that was used against him — unless the information is subject to executive privilege.

The June 3, 2011 opinion also briefly addresses the subject of congressional involvement in classification policy and allows for a carefully hedged role for Congress.

“We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information ‘exists quite apart from any explicit congressional grant’…,” wrote Caroline D. Krass, then the acting head of the Office of Legal Counsel.

“But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information,” she added.

“For example, we believe Congress’s authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit  Congress to impose the notification requirement [when FISA-derived information is used in other legal proceedings], even when that requirement reaches proceedings concerning security clearance revocations,” she wrote.

This does not really break any new ground in classification policy or politics.  Nor does it exhaust the subject of congressional authority with respect to classified information.  But it is noteworthy to have it re-stated publicly and officially nevertheless.

Federal Support for Academic Research, and More from CRS

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

“Federal Support for Academic Research,” June 17, 2011

“Financial Aid for Students: Print and Web Guides,” June 24, 2011

“Patent Reform in the 112th Congress: Innovation Issues,” June 30, 2011

“Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management,” July 5, 2011

“Real Earnings, Health Insurance and Pension Coverage, and the Distribution of Earnings, 1979-2009,” July 6, 2011

“Challenge to the Boeing-Airbus Duopoly in Civil Aircraft: Issues for Competitiveness,” July 25, 2011

“Statutory Limits on Total Spending as a Method of Budget Control,” July 26, 2011