The presidential campaigns have been largely silent so far regarding the post-9/11 changes in the character of American government. But those changes, documented by constitutional scholar Louis Fisher in a new book, have been profound and far-reaching, and they remain to be addressed.

“Following the terrorist attacks of September 11, 2001, the United States abandoned many of its rights and privileges for the accused, both citizens and non-citizens,” Mr. Fisher writes.

“With political power concentrated in the President, executive branch officials met in secret to draft policies that supported the arrest and detention of suspected terrorists. They saw no need to make specific charges, provide counsel, or allow the accused an opportunity to examine evidence.”

“Military commissions became a substitute for civil courts and courts-martial. Suspects were flown to foreign prisons for interrogation and torture. Some of the administration initiatives violated existing statutes and treaties. Once again in America, emergency powers were invoked to disregard individual rights and weaken national security,” writes Mr. Fisher, a specialist in separation of powers at the Law Library of Congress.

For those who have not been paying attention, Mr. Fisher recounts the major departures from legal norms that have unfolded in recent years, with chapters on Guantanamo, domestic surveillance, military tribunals and state secrets. And for those who have been paying attention, the book adds a new dimension of historical understanding, tracing the precursors to current policies and their eventual repudiation. (I contributed a blurb for the book jacket.)

See “The Constitution and 9/11: Recurring Threats to America’s Freedoms” by Louis Fisher, University of Kansas Press, 2008.

Noteworthy new doctrinal publications from the Department of Defense include the following (all pdf).

“Operations in Chemical, Biological, Radiological, and Nuclear (CBRN) Environments,” Joint Publication 3-11, August 26, 2008.

“Homeland Defense Activities Conducted by the National Guard,” DoD Directive 3160.01, August 25, 2008.

“Clearance of DoD Information for Public Release,” DoD Directive 5230.09, August 22, 2008.

A secure identification badge holder that was issued to NASA employees could pose a threat to sensitive NASA operations or personnel, the agency warned.

The badge holders were issued to comply with President Bush’s Homeland Security Presidential Directive-12, which requires all government personnel to possess a secure, tamper-proof form of identification.

But the NASA badge holders, which are “electromagnetically opaque” to guard against unauthorized scanning of the identity badges, have created new safety problems of their own.

“The current issue with the badge holder is the possibility of the badge holder becoming a Foreign Object Damage (FOD) hazard to flight hardware, or a projectile hazard under certain circumstances,” wrote Randy J. Aden, the senior security official at NASA’s Jet Propulsion Laboratory, in an email message to all JPL personnel on August 22.

A NASA Kennedy Space Center Safety Notice on August 15 provided additional background.

“The badge holder may separate with little effort, allowing the clips, the front half of the holder and badge ID to separate creating a significant FOD hazard in controlled areas,” the Safety Notice explained (pdf).

Consequently, “personnel should ensure the badge holder is not worn, or is properly secured, in the vicinity of sensitive flight hardware, such as electronics, where FOD may be an issue,” Mr. Aden advised.

Also, “When removing your badge, do not point [the] end with metal clips towards your face or another person” in order to minimize the projectile threat, the NASA Safety Notice suggested.

NASA’s implementation of Homeland Security Presidential Directive-12 is controversial for other reasons as well, especially at Jet Propulsion Laboratory. While the Directive requires agencies to verify their employees’ identities, JPL has instituted a far-reaching background investigation process that goes far beyond that.

At JPL, the HSPD-12 “identification” procedure includes a potentially open-ended investigation into employees’ finances, intimate relations, and personal conduct. It is roughly comparable to a security clearance background investigation, although few scientists are involved in classified research at JPL, which is mainly devoted to planetary exploration.

Last year, 28 senior scientists at JPL filed a lawsuit to challenge the Lab’s implementation of HSPD-12, which they described as overly intrusive and unconstitutional. Descriptive information on the case, which remains pending, is available from the plaintiffs here.

The official JPL web site states that “The successful implementation of HSPD-12 will increase the security of Federal facilities and Federal IT systems. This will provide better protection for the employees, the information systems and the employee’s work products.”

Neither the JPL public web site nor other NASA web sites mention the new badge holder safety issue.

Numerous congressional records on national security policy have been published in the last couple of weeks, including those listed below (mostly pdf). Some of them may have continuing reference value.

“Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part I),” House Judiciary Committee, May 6, 2008.

“Diplomatic Assurances and Rendition to Torture: The Perspective of the State Department’s Legal Adviser,” House Foreign Affairs Committee, June 10, 2008.

“Improving Detainee Policy: Handling Terrorism Detainees Within the American Justice System,” Senate Judiciary Committee, June 4, 2008.

“The National Security Letters Reform Act of 2007,” House Judiciary Committee, April 15, 2008.

“Federal Bureau of Investigation (Part II),” House Judiciary Committee, April 23, 2008.

“Torture and the Cruel, Inhuman and Degrading Treatment of Detainees: the Effectiveness and Consequences of ‘Enhanced’ Interrogation,” House Judiciary Committee, November 8, 2007.

“Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights,” House Judiciary Committee, September 5, 2007.

“FISA for the Future: Balancing Security and Liberty,” House Intelligence Committee, September 18, 2007.

“Challenges for the Special Operations Command (SOCOM) Posed by the Global Terrorist Threat,” House Armed Services Committee, February 14, 2007.

“Nomination of Dr. Donald M. Kerr to be Principal Deputy Director of National Intelligence,” Senate Intelligence Committee, August 1, 2007.

The easy availability of high-resolution imagery of much of the Earth’s surface through Google Earth has presented a significant challenge to longstanding secrecy and national security policies, and has produced several distinct types of reactions from concerned governments, according to a recent report (pdf) from the DNI Open Source Center (OSC).

“As the initial shock wore off, five main responses to the ‘Google threat’ emerged from nations around the world: negotiations with Google, banning Google products, developing a similar product, taking evasive measures, and nonchalance,” the OSC report said.

The report documents these responses with citations to published news sources. It also notes several incidents in which terrorists or irregular military forces reportedly used Google Earth to plan or conduct attacks.

The OSC report has not been approved for public release, but a copy was obtained by Secrecy News. See “The Google Controversy — Two Years Later,” Open Source Center, 30 July 2008.

Further background on the impact of commercial satellite imagery may be found in “Can You Spot the Chinese Nuclear Sub?” by Sharon Weinberger, Discover, August 2008.

Due to government restrictions, lawsuits or other arrangements with Google, quite a few locations have been excluded from detailed coverage in Google Earth. Many of these were identified in “Blurred Out: 51 Things You Aren’t Allowed to See on Google Maps,” IT Security, July 15, 2008.

Both articles were cited by the OSC in its new report.

Chinese military authorities are paying increased attention to foreign satellite reconnaissance of Chinese forces and operations, and are pursuing countermeasures such as camouflage and deception to conceal sensitive material and activities, according to a newly-disclosed analysis (pdf) performed in 2007 by the DNI Open Source Center.

“A variety of Chinese open source reporting suggests that China is developing an increasingly sophisticated understanding of US imagery collection capabilities and is steadily taking steps to evade both Western intelligence and commercial satellite and aerial reconnaissance,” the OSC report stated.

“PRC domestic and military media clearly indicate that China is well aware of US intelligence’s imagery satellite reconnaissance activities, including some key specifications. Much of the knowledge could come from observation of US military operations or from authorized and unauthorized disclosure in US media,” the report said.

Like most other OSC analytical products, the report has not been approved for public release. But a copy was obtained by Secrecy News. See “China: PLA Training Emphasizes Countermeasures Against Imagery Reconnaissance,” Open Source Center, July 31, 2007.

Scientific research in Pakistan on laser isotope separation is the subject of a new open source bibliography (pdf) compiled by independent researcher Mark Gorwitz.

“It should be noted that they are using this technology to separate Lithium-6 which can be used in advanced nuclear weapons designs,” Mr. Gorwitz said. “They have also done research on uranium spectroscopy, which could be an indication they are looking at uranium enrichment by the laser method.”

See “Pakistani Laser Isotope Separation Related Research” by Mark Gorwitz, August 2008.

Updated below

By resisting congressional requests for documents, the Bush Administration has effectively diminished Congress’s oversight power, as the review of government policy is often replaced by lengthy contests over access to records.

In the final six months of the current Administration, for example, the Senate Judiciary Committee still finds itself unable to gain access to influential records of the Justice Department Office of Legal Counsel (OLC) relating to interrogation, detention and torture.

“After more than five years of requests, we have only recently received access to redacted versions of OLC legal opinions related to the CIA’s interrogation program,” wrote Senator Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) on August 19.

“The failure to provide other documents that we have sought repeatedly, however, leaves us without basic facts that are essential to this Committee’s ability to conduct its oversight responsibilities.”

“I have been stonewalled even in my repeated request for something as simple as an index of OLC opinions,” wrote Sen. Leahy.

The Administration has not asserted executive privilege in this area, and national security classification is not a barrier to the cleared Committee staff. The requested documents have simply not been provided.

In a letter to White House Counsel Fred Fielding, Senators Leahy and Specter asked Mr. Fielding to turn over ten specified legal memoranda and other OLC documents on detention and interrogation policies.

The Senators set a deadline of Friday, August 29 at 10 AM for delivery of the requested documents. They did not indicate how they might respond if the documents are not received.

Update and clarification: The Department of Justice has provided copies of all OLC opinions dealing with CIA interrogation policy to the Senate Select Committee on Intelligence. The dispute between the Senate Judiciary Committee and the Justice Department reflects in part a disagreement over jurisdictional boundaries between the two Committees.

The Bush Administration’s use of presidential signing statements to indicate disapproval of enacted legislation has generated confusion and has undermined congressional oversight of national defense policy, the House Armed Services Committee said in a report this week (pdf).

One problem is that the Bush White House often fails to articulate the basis of its objections or their specific application in practice, the report said, terming White House objections “broad and unsubstantiated.”

“The functionality of a signing statement is greatly reduced if it is too vague to identify the concerns of the President and the interpretation of the law that the President is trying to convey to the executive branch,” the Committee report said.

Yet in issuing a signing statement indicating constitutional reservations about portions of the FY2008 defense authorization act, the President did not even identify all of the provisions that he found objectionable, the report said.

“While presidents have issued signing statements for quite some time, this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of the law.”

“Signing statements may, if used appropriately, serve a legitimate function as a tool for continuing dialog between the President, Congress, and the public. On the other hand, signing statements may be a mechanism to expand executive authority at the expense of the legislature,” the Committee report said.

The report identified options for improving oversight, such as using signing statements as a roadmap for targeted oversight of particular provisions opposed by the Administration, and introducing legislating to require formal notification of agency refusal to implement particular statutes.

See “Presidential Signing Statements,” Findings of the Subcommittee on Oversight and Investigations, House Armed Services Committee, August 18.

The Committee held a hearing on signing statements, referenced in the new report, on March 11. Prepared testimony from that hearing is available here.

The Government of Iraq yesterday signed the Comprehensive Test Ban Treaty, which prohibits all nuclear explosive testing.

“We welcome the decision by Iraq to sign the CTBT,” Tibor Toth, the Executive Secretary of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) said in a statement. “This is particularly significant given the multitude of challenges facing the Government of Iraq today: It is a strong political signal for nuclear disarmament and non-proliferation. My hope is that it will encourage other countries of the region and beyond to follow suit.”

A total of 179 States, now including Iraq, have signed the CTBT. The Treaty does not take effect, however, until it is signed and ratified by the 44 States that participated in the Treaty’s negotiations in 1996 and possessed nuclear power or research reactors at the time.

Thirty-five of those States have ratified the Treaty, including three declared nuclear weapon States: France, Russian Federation, and the United Kingdom. The nine remaining States which have not yet signed ratified the Treaty are China, North Korea, Egypt, India, Indonesia, Iran, Israel, Pakistan, and the United States. India, Pakistan and North Korea have neither signed nor ratified the Treaty. The others have signed it.

For additional background, see “Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments,” Congressional Research Service.

A newly disclosed National Security Presidential Directive on space exploration (pdf) illustrates the broad topical scope of such directives, as well as their practical limitations.

The Bush Administration directive, issued in 2004, ambitiously called for “a sustained and affordable human and robotic program to explore the solar system and beyond” and even a “human presence across the solar system.”

The document has not been formally released to the public, and multiple requests for its disclosure have been rebuffed by the National Security Council. It was obtained and released by Wikileaks.org, a website that publishes confidential documents.

See “U.S. Space Exploration Policy,” National Security Presidential Directive (NSPD) 31, January 14, 2004.

The National Security Presidential Directive largely replicates the contents of the Bush Administration’s Vision for Space Exploration, which was announced on the same day the Directive was signed. But it has some remarkable features of its own.

For one thing, it has nothing at all to do with national security as the term is commonly understood. Although space exploration was also addressed in national security directives in previous administrations, such as the Clinton Administration’s PDD-49, in such cases it was considered along with intelligence and national security space. NSPD-31 by contrast is purely a statement of science and technology policy with no national security component. This raises the possibility that other Bush Directives, yet undisclosed, also address topics outside of the usual national security framework.

Aside from that, the Bush Directive serves as a reminder that just because a President orders an agency to perform a certain action, that doesn’t guarantee compliance. Thus, in 2004 the President directed NASA to undertake a series of robotic missions to the Moon “starting no later than 2008.” But that is not going to happen. Instead, NASA may launch the Lunar Reconnaissance Orbiter no earlier than February 2009.

Some other Bush Administration National Security Presidential Directives are available here.

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

“Russia-Georgia Conflict in South Ossetia: Context and Implications for U.S. Interests,” August 13, 2008.

“Stability in Russia’s Chechnya and Other Regions of the North Caucasus: Recent Developments,” August 12, 2008.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated July 28, 2008.

“Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,” updated July 29, 2008.

“Journalists’ Privilege: Overview of the Law and Legislation in the 109th and 110th Congresses,” updated July 29, 2008.

“U.S.-China Counterterrorism Cooperation: Issues for U.S. Policy,” updated August 6, 2008.

“National Security Strategy: Legislative Mandates, Execution to Date, and Considerations for Congress,” updated July 28, 2008.

“Nanotechnology and Environmental, Health, and Safety: Issues for Consideration,” August 6, 2008.

“Nuclear Cooperation with Other Countries: A Primer,” August 12, 2008.