The Office of the Director of National Intelligence today denied a request to release the size of the 2006 National Intelligence Program budget.

The size of the 2007 budget (pdf) for the National Intelligence Program has been formally declassified and released ($43.5 billion).  And so has the figure for the 2008 budget ($47.5 billion).

But “the size of the National Intelligence Program for Fiscal Year 2006 remains currently and properly classified pursuant to Executive Order 12958, as amended,” wrote Lt. Gen. Ronald L. Burgess, Jr. (pdf), director of the ODNI Intelligence Staff.

“In addition, the release of this information would reveal sensitive intelligence sources and methods,” he wrote.

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).

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.

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.

“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.

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.

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.

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).

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.

The impending transfer of Bush Administration records to the custody of the National Archives and Records Administration (NARA) will challenge the capacity of the Archives to absorb them because of their enormous volume and the diverse formats of various electronic records.

But there is also a fundamental question concerning the integrity of the transfer process, which relies on the good faith of executive branch officials and which can be subverted by design or neglect.

“There really is no practical way we know of for NARA to be assured that every document in paper or electronic form has been received from an agency,” Dr. Allen Weinstein, the former Archivist of the United States, told Congress last year (pdf, at p. 136).  “Nor can NARA police the records management practices of over 300 federal agencies to ensure that permanent records are not purposefully or unintentionally withheld from the National Archives. Federal agencies are expected to fulfill their statutory responsibilities.”

“NARA must rely on the agency records officers, other agency officials, and a vigilant public and press to inform us of any such failure to act,” he said.

As for presidential records in particular, Dr. Weinstein said “the incumbent President is solely responsible for ensuring that … components of the Executive Office of the President adhere to the records requirements set out in [the Presidential Records Act].”  Although the President is supposed to obtain the written views of the Archivist prior to any proposed destruction of non-permanent records, “the final disposal authority rests with the incumbent president… regardless of the Archivist’s views.”

See “National Archives Oversight: Protecting Our Nation’s History for Future Generations,” hearing before the Senate Committee on Homeland Security and Governmental Affairs, May 14, 2008 (esp. pp. 131-136).

An estimated 25,000 boxes of White House documents are to be transferred to the Archives, R. Jeffrey Smith of the Washington Post reported (“Bush E-Mails May Be Secret a Bit Longer,” December 21).  Electronic records of the Bush White House are believed to total 100 terabytes of information, or about 50 times the volume of electronic records left behind by the Clinton White House in 2001, Robert Pear and Scott Shane reported (“Bush Data Threatens to Overload Archives,” New York Times, December 27, 2008).

Volume aside, the White House electronic records were often generated in non-standard formats using proprietary software that somehow must be accommodated by NARA.

“The biggest risk facing NARA that could disrupt a successful transition is our ability to ingest the electronic records of the White House,” Dr. Weinstein said.  A plan to address this risk was approved November 7, the New York Times reported.

Vice President Richard B. Cheney recently argued (pdf, at p. 24) that “The Vice President alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law” (as reported by Pamela Hess of Associated Press on December 18).

That view was disputed by Citizens for Responsibility and Ethics in Washington and historians who filed a lawsuit seeking to ensure compliance with the Presidential Records Act (PRA).  “[The Vice President’s] demand for unchecked discretion not only contravenes binding Circuit precedent, but … is repugnant to our democratic ideals and the rule of law,” they argued in a December 22 pleading.

What does it say about the American political system that someone like George W. Bush was able to ascend to the highest office in the land, despite his meager and ambiguous record?

In pursuit of an answer to that question, investigative journalist Russ Baker has constructed a full-fledged counterhistory of the last half-century as it pertains to the Bush family.  He writes in his new book “Family of Secrets” that he discovered a “dimension of power” that conditions and distorts the American political process.  It lies at the intersection of corporate oil interests, finance and intelligence, and the Bushes have been at the heart of it.

With a brief apology to the reader, Baker revisits the JFK assassination (and George H.W. Bush’s peculiar response to it) and he embraces a radical reinterpretation of Watergate in which President Nixon is the target and victim of the conspiracy rather than its instigator.

“Family of Secrets” postulates a network of politically and financially powerful individuals working behind the scenes to advance their interests at the expense of the nation.  Because the book consciously challenges the generally accepted record of several decades of public events, it assumes a burden of proof that it cannot fully discharge.  It relies heavily on insinuation based on isolated facts, it emphasizes “relationships” as a primary manifestation of political allegiance and influence, and in the end it does not clearly state a significant hypothesis that could be corroborated or refuted by further investigation.

But Baker is an energetic reporter and a good storyteller.  He has conducted prodigious research and interviewed both familiar and unfamiliar sources to produce riveting (if occasionally appalling) revisions of the JFK assassination and Watergate stories.  Even readers who find his methodology unsound may profit from the fruits of his research.  It is astonishing to learn, for example, that ousted CIA Director Allen Dulles was a contributor to the 1963 Encyclopedia Britannica yearbook entry on the Bay of Pigs.  And I had forgotten, or never knew, that the Central Intelligence Agency refused a direct request from President Nixon to provide documents concerning the Bay of Pigs and other topics.

Baker makes a cogent case for a “deep” interpretation of the JFK assassination, Watergate and other events.  He stresses the fact that Kennedy and Nixon each had real personal and political enemies who benefitted when these presidents were removed from office.  In each case, he says, the Bush family was among the beneficiaries.

Because of its undisciplined use of historical data and the absence of rebuttal (the Bush family did not agree to be interviewed), “Family of Secrets” should not be the only book of recent history that anyone reads.  But at its best, it provides a reader with an arsenal of new questions with which to interrogate and rethink the historical record.

A federal appeals court in Oregon will hold a hearing next month on a government appeal of a 2007 judicial ruling that said the Foreign Intelligence Surveillance Act (FISA) is unconstitutional.

The FISA is a statute that regulates domestic intelligence, and generally requires judicial authorization for intelligence search and surveillance within the United States.  Critics of Bush Administration electronic surveillance activities such as the “Terrorist Surveillance Program” have argued that they unlawfully circumvented the provisions of the FISA.

But the FISA itself, as modified by the USA PATRIOT Act, is unconstitutional, a federal court ruled on September 26, 2007 (pdf).

That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act.  The FBI later apologized for his mistaken arrest and provided a financial settlement.  But Mayfield continued to challenge the legal foundation of the arrest.

He successfully argued that FISA, as modified by the PATRIOT Act, violates the Fourth Amendment because it eroded the requirement of probable cause as a pre-condition for obtaining a search warrant, and because it permitted warrants to be issued under FISA without a showing that the “primary purpose” of the search is to obtain foreign intelligence information (as summarized by Judge Vaughn Walker in a July 2008 opinion [pdf], at pp. 39-41).

Judge Ann Aiken of the District Court of Oregon agreed with this assessment in her September 2007 order and declared FISA unconstitutional.

The government promptly appealed that ruling, but the case has been dormant since May 2008.  A hearing on the appeal has now been scheduled for February 5, 2009 at the Ninth Circuit Court of Appeals in Portland, Oregon.

It is not known whether the incoming Obama Administration will reconsider the pending appeal of the lower court ruling.