For a variety of reasons, from institutional lethargy to calculated tactical opposition, the rate at which the Obama Administration’s judicial nominees are confirmed by Congress has become painfully slow, to the detriment of the judicial system and the possibility of justice itself.

A new Congressional Research Service analysis of judicial nominations and confirmations since the 1980s found that the duration of the confirmation process is now extraordinarily long even in those cases when it concludes successfully.

“President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days),” the CRS analysis determined.

See President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan, May 2, 2013.

Some other new or newly updated CRS reports that Congress has not made readily available to the public include the following.

Legislative Branch: FY2013 Appropriations, May 2, 2013

Extending Unemployment Compensation Benefits During Recessions, May 2, 2013

U.S. Household Savings for Retirement in 2010, April 30, 2013

Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register, May 1, 2013

Budget Control Act: Potential Impact of Sequestration on Health Reform Spending, May 1, 2013

Japan-U.S. Relations: Issues for Congress, May 1, 2013

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, May 1, 2013

The United Nations Human Rights Council: Issues for Congress, April 30, 2013

“During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.”

That somewhat opaque statistic was disclosed in the Justice Department’s latest annual report to Congress on the Foreign Intelligence Surveillance Act, filed on Tuesday.  As is usually the case, none of the requests for electronic surveillance were denied by the Court.

No matter how it is sliced and diced, the newly disclosed number of applications does not yield much substance.  It means that the government submitted an average of 5 requests per day last year for intelligence surveillance or physical search.  It is about 5% higher than the number of applications the year before (1,745), but quite a bit lower than the figure from 2007 (2,371).

The number of applications does not correspond directly to the number of targets, since multiple applications may be submitted in the course of an individual investigation. Nor is the outcome of the surveillance or search activity indicated in a way that would tend to validate or invalidate the authorization after the fact.

In any case, the FIS Court did not deny any of the government’s requests for authority to conduct electronic surveillance in whole or in part, the report said, although unspecified modifications were made to 40 proposed orders. The report does not say whether or not any requests for physical search were disapproved or modified.

The government also made 212 applications for access to business records and “tangible things” for foreign intelligence purposes, almost the same as the 205 the year before.

And also in 2012, the FBI submitted 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons (“excluding requests for subscriber information only”), down somewhat from the 16,511 requests (concerning 7,201 different persons) the year before.

As an instrument of public oversight, the annual reports on FISA are only minimally informative.  They register gross levels of activity, but they provide no measures of quality, performance or significance.  Neither counterintelligence successes nor failures can be discerned from the reports.  Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

Congressional leaders blocked efforts to impose new or stronger public reporting requirements when the FISA Amendments Act was reauthorized late last year. However, Sen. Jeff Merkley and several Senate colleagues asked the FIS Court to summarize its opinions in such a way as to facilitate their eventual declassification and disclosure.  This request has produced no known results to date.

The FISA itself is a product of a rich period of political ferment in the 1970s when public and private institutions converged to promote increased transparency, improved oversight and meaningful new constraints on government authority.  Investigative journalists wrote groundbreaking stories, Congressional committees held historic hearings, political activists and ordinary citizens mobilized to defend their interests, leading to real and lasting changes. On the legislative front, these included passage of an invigorated Freedom of Information Act, along with the Privacy Act, the Government in the Sunshine Act, and the FISA, which subjected intelligence surveillance activities to at least a degree of independent judicial review.

An interesting account of that momentous period can be found in the new book Reining in the State: Civil Society and Congress in the Vietnam and Watergate Eras by Katherine A. Scott, University Press of Kansas, March 2013.

The process of declassifying national security records, which is hardly expeditious under the best of circumstances, will become slower as a result of the mandatory budget cuts known as sequestration.

Due to sequestration, “NARA has reduced funding dedicated to the declassification of Presidential records,” the National Archives and Records Administration (NARA) said in a report last week.

“Instead, NARA staff will prepare documents for declassification, in addition to their existing duties. This will slow declassification processes and delay other work, including FOIA responses and special access requests,” said the new report, which also identified several other adverse effects of the across-the-board cuts.

Meanwhile, because of the basic asymmetry between classification and declassification, there is no particular reason to expect a corresponding reduction in the rate at which new records are classified.

Classification is an integral part of the production of new national security information that cannot be deferred, while declassification is a distinct process that can easily be put on hold.  Likewise, there is no dedicated budget for “classification” to cut in the way that NARA has cut declassification spending.  And while Congress has erected barriers to declassification (such as the Kyl-Lott Amendment to prohibit automatic declassification of records without review), it has simultaneously allowed declassification requirements to go overlooked and unenforced.

Some declassification is actually mandated by law.  A 1991 statute on the Foreign Relations of the United States series requires the Department of State to publish a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions” no later than 30 years after the fact, necessitating the timely declassification of the underlying records.  But law or no law, the government has not complied with this publication schedule.

 

A new report from the Congressional Research Service assesses the economic state of post-revolution Egypt and finds it fairly grim.

“After more than two years of social unrest and economic stagnation following the 2011 popular uprising, the government of Egypt is facing serious economic pressures that, if not remedied, could lead to economic collapse and possibly new levels of violence,” the report says.

“Egyptian authorities and the International Monetary Fund (IMF) have been in negotiations for more than two years over an IMF loan to Egypt in exchange for policy reforms that, if successful, could stave off economic collapse and create more ‘inclusive’ growth…. [but] No agreement has been finalized or implemented to date. Egyptian authorities have been reluctant to commit to economic reforms that may be politically unpopular and increase the country’s debt.”

Background on the negotiations and on U.S. aid to Egypt are presented in Egypt and the IMF: Overview and Issues for Congress, April 29, 2013.

Some other CRS reports on Middle Eastern countries that have been recently updated include the following.

Iraq: Politics, Governance, and Human Rights, April 26, 2013

Iran Sanctions, April 24, 2013

U.S. Foreign Aid to Israel, April 11, 2013

Iran: U.S. Concerns and Policy Responses, April 4, 2013

Jordan: Background and U.S. Relations, April 1, 2013

The international agreements that constitute the infrastructure of international trade and investment are spotlighted in an informative new report from the Congressional Research Service.

“In the absence of an overarching multilateral framework on investment, bilateral investment treaties (BITs) and investment chapters in free trade agreements (FTAs), collectively referred to as ‘international investment agreements,’ have emerged as the primary mechanism for promoting a rules-based system for international investment,” the new report explains.

“Presently, there are over 3,000 BITs globally. The United States has concluded 47 BITs, 41 of which have entered into force.”  These treaties were tabulated by CRS and presented along with other little-known data on the subject in U.S. International Investment Agreements: Issues for Congress, April 29, 2013.

Other new or newly updated CRS reports obtained by Secrecy News include the following.

Mountaintop Mining: Background on Current Controversies, April 29, 2013

National Park System: Establishing New Units, April 25, 2013

The Administrative Process by Which Groups May Be Acknowledged as Indian Tribes by the Department of the Interior, April 26, 2013

Social Security Disability Insurance (SSDI) Reform: An Overview of Proposals to Reduce the Growth in SSDI Rolls, April 29, 2013

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, April 26, 2013

“Intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power that are imposed by our country’s Constitution, laws, and traditions,” according to the Congressional Research Service.

The CRS, which shuns polemical claims, presents that assertion as a simple statement of fact (although cautiously sourced to the 1976 Church Committee report) in a newly updated report on FBI terrorism investigations.

The report reviews the FBI investigative process, the statutory framework within which it operates, and the tools at its disposal, along with oversight considerations for Congress.  See The Federal Bureau of Investigation and Terrorism Investigations, April 24, 2013.

Other new or newly updated CRS reports include the following.

Terrorism, Miranda, and Related Matters, April 24, 2013

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program, April 26, 2013

U.S. Air Force Bomber Sustainment and Modernization: Background and Issues for Congress, April 23, 2013

Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress, April 25, 2013

U.S.-South Korea Relations, April 26, 2013

Iran Sanctions, April 24, 2013

Intelligence Issues for Congress, April 23, 2013

Inflation-Indexing Elements in Federal Entitlement Programs, April 24, 2013

Changes in the Arctic: Background and Issues for Congress, April 25, 2013

Prevalence of Mental Illness in the United States: Data Sources and Estimates, April 24, 2013

The Department of Defense has revised its 1996 directive on non-lethal weapons (NLW) to guide future development and procurement of this category of weaponry.

“Unlike conventional lethal weapons that destroy their targets principally through blast, penetration, and fragmentation, NLW employ means other than gross physical destruction to prevent the target from functioning. NLW are intended to have relatively reversible effects on personnel or materiel,” the revised directive explains.

“It is DoD policy that NLW doctrine and concepts of operation will be developed to reinforce deterrence and expand the range of options available to commanders.”

The directive does not apply to information operations, cyber operations or electronic warfare capabilities.  See DoD Executive Agent for Non-Lethal Weapons (NLW), and NLW Policy, DoD Directive 3000.03E, April 25, 2013.

Other noteworthy new or updated DoD issuances include the following.

DoD Nuclear Weapons Surety Program, DoD Directive 3150.02, April 24, 2013

DoD Counterfeit Prevention Policy, DoD Instruction 4140.67, April 26, 2013

Assistant to the Secretary of Defense for Intelligence Oversight (ATSD(IO)), DoD Directive 5148.11, April 24, 2013

Use of Excess Ballistic Missiles for Space Launch, Directive-Type Memorandum (DTM) 11-008, July 5, 2011, Incorporating Change 3, April 25, 2013

The latest updates from the Congressional Research Service include the following.

Armed Conflict in Syria: U.S. and International Response, April 22, 2013

Turkey: Background and U.S. Relations, April 23, 2013

Department of Defense Implementation of the Federal Data Center Consolidation Initiative: Implications for Federal Information Technology Reform Management, April 23, 2013

Security Assistance Reform: “Section 1206” Background and Issues for Congress, April 19, 2013

Promoting Global Internet Freedom: Policy and Technology, April 23, 2013

Overview and Issues for Implementation of the Federal Cloud Computing Initiative: Implications for Federal Information Technology Reform Management, April 23, 2013

Internet Governance and the Domain Name System: Issues for Congress, April 23, 2013

Regular Vetoes and Pocket Vetoes: An Overview, April 22, 2013

Country-of-Origin Labeling for Foods and the WTO Trade Dispute on Meat Labeling, April 22, 2013

Congressional or Federal Charters: Overview and Current Issues, April 19, 2013

Common Questions About Postage and Stamps, April 19, 2013

Shutdown of the Federal Government: Causes, Processes, and Effects, April 23, 2013

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, April 17, 2013

The White House should undertake a focused effort to reduce national security secrecy, some 30 public interest organizations urged President Obama in a letter today.

The groups called upon the President to adopt a recommendation of the Public Interest Declassification Board to set up a White House-led Security Classification Reform Steering Committee.

“A presidentially appointed Steering Committee would provide a mechanism for identifying and coordinating needed changes and for overcoming internal agency obstacles to change,” the group letter said. “It would also reflect the urgency of reining in a classification system that is largely unchecked.”

To be effective, though, the proposed Steering Committee would need to be something more than just a deliberative, coordinating body, such as the ill-fated Security Policy Board of the 1990s.

Specifically, it would require “a clear mandate to reduce the size and scope of the national security classification system,” the group letter said, as well as active White House participation to ensure agency cooperation and compliance.

In principle, reductions in national security secrecy can actually benefit government agencies by diminishing the significant financial and operational costs they incur for classification. But in practice, such reductions have been hard to accomplish and agencies have resisted any externally imposed limits on their presumed autonomy to classify as they see fit.

Of all the potential ways to reduce secrecy that could be envisioned, the proposal for a White House-led Steering Committee is currently the most salient.  That’s because it was recommended by the Public Interest Declassification Board, who developed it in response to a request from President Obama himself.

“I also look forward to reviewing recommendations from the study that the National Security Advisor will undertake in cooperation with the Public Interest Declassification Board to design a more fundamental transformation of the security classification system,” the President wrote in a December 29, 2009 memorandum.

Now the recommendations that the President looked forward to are in hand, and it will be up to the White House to act.

Dozens of federal laws protect employees who report waste, fraud or abuse by their employers. Some of those laws, particularly those that apply to private-sector workers, have been strengthened in recent years, according to a new survey from the Congressional Research Service.

“Eleven of the forty laws reviewed in this report were enacted after 1999. Among these laws are the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act,” the CRS report said.

The report “focuses on key aspects of the federal whistleblower and anti-retaliation laws. For each law, the report summarizes the activities that are protected, how the law’s protections are enforced, whether the law provides a private right of action, the remedies prescribed by the law, and the year the law’s whistleblower or anti-retaliation provisions were adopted and amended.”

The report does not address national security whistleblowers, or those who disclose classified information with or without authorization. See Survey of Federal Whistleblower and Anti-Retaliation Laws, April 22, 2013.

Other new or newly updated CRS reports that Congress has not made publicly available include the following.

State Taxation of Internet Transactions, April 19, 2013

Drought in the United States: Causes and Issues for Congress, April 22, 2013

Department of Homeland Security Appropriations: A Summary of Congressional Action for FY2013, April 22, 2013

The FY2014 State and Foreign Operations Budget Request, April 18, 2013

U.S.-EU Cooperation Against Terrorism, April 22, 2013

Expediting the Return to Work: Approaches in the Unemployment Compensation Program, April 18, 2013

Economic Recovery: Sustaining U.S. Economic Growth in a Post-Crisis Economy, April 18, 2013

Federal Research and Development Funding: FY2013, April 19, 2013

The U.S. Export Control System and the President’s Reform Initiative, April 19, 2013

Mexico’s Drug Trafficking Organizations: Source and Scope of the Violence, April 15, 2013

An enormous volume of photographic imagery from the KH-9 HEXAGON intelligence satellites was quietly declassified in January and will be transferred to the National Archives later this year for subsequent public release.

The KH-9 satellites operated between 1971 and 1984. The imagery they generated should be of historical interest with respect to a wide range of late Cold War intelligence targets but is also expected to support current scientific research on climate change and related fields of inquiry.

The film-based KH-9 satellites were officially declared “obsolete” by the Director of National Intelligence in 2011.  The KH-9 imagery was nominally approved for declassification in February 2012, and then it was finally declassified in fact this year.

ODNI spokesman Michael Birmingham said that approximately 97 percent of the satellite imagery that was collected from the 19 successful KH-9 missions was formally declassified by DNI James R. Clapper on January 11, 2013.

“The small amount of imagery exempted from this declassification decision will be removed prior to its accession to the National Archives (NARA) and will remain classified pursuant to statute and national security interests, and reviewed periodically to determine if additional declassification is warranted,” Mr. Birmingham said last week.

The imagery is being transferred to NARA in stages, with final delivery scheduled for September 2013, he said.

The transfer is being implemented pursuant to a November 2012 Memorandum of Agreement between the National Geospatial-Intelligence Agency (NGA) and the National Archives, under which the Archives is “responsible for providing public access to the declassified imagery.”

Reishia R. Kelsey of NGA public affairs confirmed that the imagery “will be made available to the public following its accession to NARA” later this year.

The National Archives was not prepared last week to set a precise date for public release.  But an Archives official said that “NARA intends to make these records available to the public at our research room in College Park, MD as soon as possible following transfer.”

If successfully executed, the release of the KH-9 imagery will constitute a breakthrough in the declassification and disclosure of national security information. It will be one of several discrete but momentous shifts in secrecy policy during the Obama Administration that have often gone unrecognized or unappreciated. Though these declassification actions took years or decades to accomplish, they have been downplayed by the White House itself, which has seemed curiously ambivalent about them.  They include the public disclosure of the size of the U.S. nuclear weapons arsenal, the routine publication of the annual intelligence budget request, the release of the Office of Legal Counsel “torture memos,” the declassification of the KH-9 satellite itself, and others.

The KH-9 imagery is being processed for public release pursuant to the 1995 Executive Order 12951 on “Release of Imagery Acquired by Space-based National Intelligence Reconnaissance Systems.”  That order had been effectively dormant since the Clinton Administration, when the last major release of intelligence satellite imagery (from the CORONA, ARGON and LANYARD missions) took place.

The declassification of the KH-9 imagery is a massive undertaking, Mr. Birmingham of ODNI said last year.

“For context, and to grasp the scope of the project, the KH-9/HEXAGON system provided coverage over hundreds of millions of square miles of territory during its 19 successful missions spanning 1971-1984,” he said.  “It is a daunting issue to address declassification of the program specifics associated with an obsolete system such as the KH-9, which involves the declassification of huge volumes of intelligence information gathered on thousands of targets worldwide during a 13 year time period.”

Just as law enforcement relied upon surveillance cameras and personal photography to enable the prompt identification of the perpetrators of the Boston Marathon bombing, U.S. armed forces increasingly look to the collection of still and motion imagery to support military operations.

Combat camera (COMCAM) capabilities support “operational planning, public affairs, information operations, mission assessment, forensic, legal, intelligence and other requirements during crises, contingencies, and exercises around the globe,” according to newly updated military doctrine.

COMCAM personnel are “highly trained visual information professionals prepared to deploy to the most austere operational environments at a moment’s notice.”

COMCAM units “are adaptive and provide fully qualified and equipped personnel to support sustained day or night operations” in-flight, on the ground or undersea, as needed.

“Effectively employed COMCAM assets at the tactical level can potentially achieve national, theater strategic, and operational level objectives in a manner that lessens the requirement for combat in many situations,” the new doctrine says.  “Their products can counter adversary misinformation, disinformation, and propaganda and help commanders gain situational awareness on operations in a way written or verbal reports cannot.”

“The products can also provide historical documentation, public information, or an evidentiary foundation… for forensic documentation of evidence and legal proceedings. They can provide intelligence documentation to include imagery for facial recognition and key leader engagements, and support special reconnaissance.”

The newly issued COMCAM doctrine supersedes previous guidance from 2007.  See Combat Camera: Multi-Service Tactics, Techniques, and Procedures for Combat Camera (COMCAM) Operations, April 2013.