“The preeminent position that the United States has enjoyed in the life sciences has been dependent upon the flow of foreign scientific talent to its shores,” the National Research Council said in its new report on biosecurity (p. 159).

But onerous visa requirements and so-called “deemed export” restrictions on scientific communications could erode the contribution of foreign scientists to U.S. preeminence, the report warned.

A newly updated survey of foreign scientists and engineers and associated policy questions has been prepared by the Congressional Research Service. A copy was obtained by Secrecy News.

See “Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” Congressional Research Service, updated January 3, 2006.

The possibility that Freedom of Information Act requesters can recover attorneys’ fees in FOIA lawsuits makes it easier to find attorneys to represent requesters on a contingency or pro bono basis.

Conversely, when new restrictions on the award of attorneys fees are put in place, as they have been in recent years, the availability of pro bono attorneys in FOIA cases has seemed to shrink accordingly.

FOIA reform legislation introduced last year by Sen. John Cornyn (R-TX) and Sen. Patrick Leahy (D-VT) would restore the previous standard which permitted recovery of attorneys’ fees whenever a requester’s lawsuit resulted in an agency decision to release the requested record.

The larger question of Attorneys’ Fees generally (not specifically in the FOIA context) is treated at length in a new report from the Congressional Research Service. A copy was obtained by Secrecy News.

See “Awards of Attorneys’ Fees by Federal Courts and Federal Agencies,” updated January 24, 2006.

The government failed to preserve certain official email messages generated by the Office of the Vice President and the Executive Office of the President in 2003 as required by law, Special Prosecutor Patrick Fitzgerald revealed in a January 23 letter (pdf).

The contents and quantity of the missing email is unknown.

In another letter dated January 9 (pdf), Mr. Fitzgerald also disclosed that his Office has received redacted versions of the President’s Daily Brief (“a very discrete amount of material relating to PDBs”) concerning Valerie Plame Wilson or Amb. Joseph Wilson’s trip to Niger. Mr. Libby’s attorney had requested (pdf) all copies of the President’s Daily Brief “in its entirety” from May 2003 through March 2004.

These and several other interesting nuggets emerged in correspondence between the Special Prosecutor and attorneys for I. Lewis “Scooter” Libby, the former aide to Vice President Cheney who is being prosecuted for perjury in connection with the CIA Plame leak investigation. The correspondence was filed in DC District Court on January 31.

While it has apparently proved feasible to declassify portions of PDBs from 2 or 3 years ago, the Central Intelligence Agency still insists that 40 year old PDBs regarding the Vietnam War cannot possibly be declassified.

That dispute is the subject of an ongoing Freedom of Information Act lawsuit filed by UC Davis Professor Larry Berman. For background on the case see this National Security Archive update.

Former Soviet President Mikhail Gorbachev nominated the crew of the ill-fated Soviet nuclear submarine K-19, which suffered a loss of coolant accident on July 4, 1961, for a Nobel Peace Prize this week.

“Through the courage of the heroic sailors, a reactor explosion and a consequent environmental catastrophe in the ocean were averted,” Mr. Gorbachev wrote.

“An explosion on board the K-19 could have been taken for a military provocation or even an attempt to launch a nuclear strike on the North American coast. An immediate response by the United States could have triggered a Third World War,” he wrote.

All information about the 1961 accident was kept secret in the USSR until 1990, he said.

See “Gorbachev Proposes Soviet Sub Crew for Nobel Peace Prize,” Interfax News Agency, translated by the DNI Open Source Center, Feburary 1, 2006.

Mr. Gorbachev’s statement (in Russian) may be found here.

The K-19 incident was recently the subject of a National Geographic feature film starring Harrison Ford called “K-19: The Widowmaker.”

Jeffrey Lewis of ArmsControlWonk has obtained a copy of the latest IAEA brief on Iran’s nuclear program, “Developments in the Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran and Agency Verification of Iran’s Suspension of Enrichment-related and Reprocessing Activities.”

The amateur satellite spotters who monitor the orbiting network of classified reconnaissance satellites are profiled by Patrick Radden Keefe in “I Spy,” Wired Magazine, February 2006.

A new report from the Congressional Research Service takes a detailed look at proposals to significantly restructure the U.S. nuclear weapons complex.

The proposals, offered by a Department of Energy Task Force, include closure and consolidation of various nuclear facilities and production of a newly designed Reliable Replacement Warhead (RRW).

“Some express concern that Task Force recommendations may be at odds with U.S. nuclear nonproliferation policy,” insofar as they envision the indefinite preservation of the existing nuclear weapons stockpile, the CRS report observes.

See “Nuclear Weapons Complex Reconfiguration: Analysis of an Energy Department Task Force Report,” February 1, 2006.

Military regulations offer wide latitude in the gathering of
domestic intelligence information.

“Contrary to popular belief, there is no absolute ban on [military]
intelligence components collecting U.S. person information,” according
to a 2001 Army intelligence memo.

What’s more, military intelligence agencies can provisionally
“receive” domestic intelligence information that they may not be
legally permitted to “collect.”

“MI [military intelligence] may receive information from anyone,
anytime.”

That point was stressed in the November 5, 2001 memo issued by Lt. Gen.
Robert W. Noonan, Jr., the Deputy Chief of Staff for Intelligence.

DoD and Army regulations “allow collection about U.S. persons
reasonably believed to be engaged, or about to engage, in
International terrorist activities.”

“Remember, merely receiving information does not constitute
‘collection’ under AR [Army Regulation] 381-10; collection entails
receiving ‘for use’,” Gen. Noonan wrote.

“Army intelligence may always receive information, if only to
determine its intelligence value and whether it can be collected,
retained, or disseminated in accordance with governing policy.”

The distinction between “receiving” information (always permitted)
and “collecting” it (permitted only in certain circumstances)
appears to offer considerable leeway for domestic surveillance
activities under the existing legal framework.

This in turn makes it harder to understand why the NSA domestic
surveillance program departed from previous practice.

“It seems to me that there is enough ambiguity in the language that
with a bit of creativity in managing the US persons files there
would have been not too much trouble” applying existing rules to the
NSA program, said John Pike of GlobalSecurity.org, who pointed
Secrecy News to the 2001 Army memo.

See “Collecting Information on U.S. Persons,” Office of the Deputy Chief of Staff for Intelligence, November 5, 2001.

Army Regulation 381-10, “U.S. Army Intelligence Activities,” was
reissued on November 22, 2005, but up to now it has not been
publicly disclosed.

However, the previous edition of AR 381-10, dated July 1, 1984 (and in effect
until December 22, 2005), is available here.

The intelligence reform legislation of 2004 abolished the position of Director of Central Intelligence, transferring many of its functions to the new Director of National Intelligence.

This raised a technical legal question as to whether the DCI who was serving at the time, Porter J. Goss, would need to be formally reappointed to the position of Director of the Central Intelligence Agency (DCIA).

The question was analyzed at length by the Justice Department Office of Legal Counsel (OLC) in a January 2005 memo that has just been released.

To cut to the chase, the OLC concluded “that when the Intelligence Reform Act takes effect the then-current DCI would not require a new appointment to serve as DCIA.”

See “Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004,” Justice Department Office of Legal Counsel, January 12, 2005 (published January 23, 2006).

In the past, the National Reconnaissance Office, the agency that develops spy satellites, has released unclassified portions of its budget request documents. But last year, the NRO refused to do so, claiming that these unclassified materials fall under the “operational files” exemption to the Freedom of Information Act.

A lawsuit brought by the Federation of American Scientists is challenging that claim. The two parties have just finished briefing the case with replies to each other’s opposing motions.

“The defendant [NRO] has shown by a sworn declaration which is clear, specific, and reasonably detailed that the requested records are properly designated as operational,” the NRO concluded (pdf).

No, “since all parties agree that the requested record has been disseminated beyond its originating operational file, the conclusion is inescapable that the requested record must be processed under FOIA,” we argued (pdf).

At this point, the parties are largely talking past each other, and it will be up to the judge, the Hon. Reggie B. Walton, to resolve the dispute.

The latest pleadings in Aftergood v. NRO may be found here.

The Department of Energy has released a sanitized version of its nineteenth report to Congress on inadvertent releases of classified nuclear weapons information through the declassification process.

Out of more than 150,000 pages at the National Archives that were reviewed by DOE, 16 pages contained Restricted Data, and another 99 pages contained Formerly Restricted Data (which is also classified).

As in the past, the most common type of inadvertent release concerned the locations of historical nuclear weapons storage depots. However, some design-related information was also inadvertently released. All of this material has now been withdrawn from public access.

See “Nineteenth Report to Congress on Inadvertent Releases of Restricted Data and Formerly Restricted Data Under Executive Order 12958,” November 2005 (released in declassified form January 2006).

Some notable rules and regulations on security policy that have recently been published include the following:

“National Industrial Security Program Directive Number 1,” Information Security Oversight Office, January 27, 2006.

“International Interchange of Patent Rights and Technical Information,” Department of Defense Instruction 2000.03, January 17, 2006.

“Naturalization of Aliens Serving in the Armed Forces of the United States and of Alien Spouses and/or Alien Adopted Children of Military and Civilian Personnel Ordered Overseas,” Department of Defense Instruction 5500.14 January 4, 2006.

“Department of the Navy Policy for Content of Publicly Accessible World Wide Web Sites,” Secretary of the Navy Instruction 5720.47B, December 28, 2005.

Puzzled by references to non-disclosure agreements signed by reporters who are embedded with U.S. military forces, Secrecy News requested a copy of such a non-disclosure agreement from the Pentagon.

But there isn’t one.

“The Office of the Assistant Secretary of Defense for Public Affairs has advised this Office that there is no non-disclosure agreement for access to classified material for embedded reporters,” wrote Chief DoD FOIA officer Will Kammer in response to our Freedom of Information Act request.

What there is, however, is a somewhat informal process of negotiation by which access is granted to a reporter in exchange for an agreement to conduct a security review.

“The [unit] commander may offer access if the reporter agrees to a security review of their coverage. Agreement to security review in exchange for this type of access must be strictly voluntary and if the reporter does not agree, then access may not be granted,” according to February 2003 public affairs guidance on embedded reporters.

“If a security review is agreed to, it will not involve any editorial changes; it will be conducted solely to ensure that no sensitive or classified information is included in the product. If such information is found, the media will be asked to remove that information from the product and/or embargo the product until such information is no longer classified or sensitive.”

“This paragraph does not authorize commanders to allow media access to classified information.”

See Mr. Kammer’s letter and the February 2003 public affairs guidance on embedded reporters here.