Updated below

The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008.  The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA).

The proposed FISA Court rules (pdf) provide new procedures by which telecommunications companies can petition the Court to modify or dismiss a court order or a directive from the Attorney General or the DNI requiring them to assist in electronic surveillance, to provide “any tangible thing,” or to adhere to a nondisclosure requirement concerning intelligence surveillance.  Meanwhile, other procedures would permit the government to petition the Court to compel cooperation by a non-compliant telecommunications provider.  A new section in the proposed FISA Court rules accordingly addresses the conduct of “adversarial proceedings,” a term that does not appear in the current rules (last modified in 2006).

The proposed new rules make other minor editorial changes in current procedures.  For example, the existing rules provide for publication of FISA Court opinions, but state that “Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary” to ensure that properly classified information is not disclosed.  In a slight but possibly noteworthy revision, the proposed new rules state that “Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary….”

The FISA Court has provided an opportunity for public comment on the new rules.  Comments are due by October 4, 2010.

The FISA Amendments Act of 2008, which provided the impetus for the new rules, was strongly opposed by civil liberties groups because it granted immunity to telecoms that may have violated the FISA by implementing President Bush’s Terrorist Surveillance Program, which circumvented that binding statute altogether.  The 2008 Amendments were also opposed by several Senators who went on to become leading figures in the Obama Administration and who expressed concern that the Act did not give the FISA Court enough independent authority.

“Although the bill gives the FISA Court a greater role than earlier bills did, it still fails to provide for a meaningful judicial check on  the President’s power,” said Senator Joe Biden during the July 9, 2008 floor debate on the Act.

Likewise, “while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President’s power is debatable,” said Sen. Hillary R. Clinton, explaining her decision to vote against the Amendments.

But the FISA Amendments Act was supported by then-Senator Barack Obama, along with a majority of other Senators and Congressmen, and it was enacted into law.

Update:

Greg McNeal and Marc Ambinder believe that the proposed FISC rules signal a change in the court’s attitude towards the executive branch’s authority over classified information, indicating that executive branch review would be “optional” under the new rules. But that is almost certainly a misunderstanding.

The modified language may invite such a misunderstanding. Thus, the existing rule 5c states:

“Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor).” (emph. added)

The proposed new rule 62 states:

Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).” (emph. added)

Based on the change in wording from “must” to “may, as appropriate”, McNeal concluded that “the Executive Branch review requirement is now optional.” But that is a hasty and likely erroneous reading.

Note first that the existing rule applied only to Opinions (which “must” be reviewed), whereas the proposed new rule applies more broadly to an “order, opinion, or other decision” (which “may, as appropriate” be subject to review). Is it sensible to think that every FISC decision and order, even decisions on scheduling matters or orders granting leave to exceed a standard page limit, must be subject to classification review by the executive branch prior to publication?

Even full-fledged Opinions may reasonably be exempt from any need for classification review. On August 27, 2008 the FISC issued an Opinion (pdf) denying an ACLU motion for leave to participate in court proceedings. There was nothing classified in the ACLU motion or in the government opposition. Why would anyone suppose that executive branch review of the subsequent Opinion should be required prior to publication?

Does this mean that the FISC is going soft on executive branch authority over the classification system? I don’t think so. Both current and proposed rules explicitly acknowledge the authority of the current executive order concerning classified information and the need to ensure that “classified information is appropriately protected” under that order.

In fact, one could argue that the Court has moved in the opposite direction. The existing rules speak of protecting only “properly classified information,” whereas the proposed new rules eliminate the adjective “properly” and apply categorically to all classified information. Thus, in its proposed rules the Court has seemingly renounced any role in validating the proper classification of information by the executive branch.

Update 2:

Greg McNeal responds here.

The continuing controversy over whether the Government Accountability Office will be permitted to participate in intelligence oversight, as some in Congress wish, or whether cleared GAO auditors and investigators will be excluded from intelligence oversight tasks, as the Obama Administration prefers, was discussed in the Washington Post’s Top Secret America blog yesterday.

I participated in a Q&A on the issue with the Post’s Dana Hedgpeth here.

The question of whether or not to disclose the number of nuclear weapons in the U.S. arsenal “goes to the very heart of our democratic system of government,” said Senator Brien McMahon (D-CT) in a newly rediscovered 1949 speech (pdf) on secrecy in nuclear weapons policy.

“Do we possess five bombs, or fifty bombs, or five hundred bombs?  Are we strong or weak in the field of atomic weapons?  Only the Atomic Energy Commissioners, high-ranking military men, and a few others know the correct answer to these vital questions,” Sen. McMahon said.

Sen. McMahon (1903-1952) was the principal author of the Atomic Energy Act of 1946, which established the Atomic Energy Commission and placed control of nuclear weapons in civilian hands.

“Though I have been a member of the Joint Congressional Committee on Atomic Energy since its inception, and though I have just been elected its chairman, I do not myself know how many bombs we possess or how rapidly we are making new ones,” he said.

“It is interesting to note that concealment of atomic production rates is secrecy of a scope which has never been attempted before during peacetime in the United States,” Sen. McMahon said. He indicated that he had not reached a definite conclusion as to whether the size of the stockpile size should be made public.

The text of Senator McMahon’s January 31, 1949 address to the Economic Club of Detroit was entered into his rather voluminous FBI file, which was obtained by researcher Michael Ravnitzky.

Illustrating the often glacial pace of secrecy reform, it was not until May 3 of this year that the current size of the nuclear arsenal was officially revealed for the first time.

The Obama Administration continued its pursuit of individuals who leak classified information to the press with another indictment of a suspected leaker. The Department of Justice announced last week that Stephen Jin-Woo Kim, a State Department contractor, had been indicted (pdf) under the Espionage Act for the unauthorized disclosure of national defense information and for lying to the FBI.  Mr. Kim pleaded not guilty to both charges.

The classified information, which was not specified in the indictment, reportedly consisted of a 2009 intelligence assessment conveyed to Fox News stating that North Korea was likely to respond to United Nations sanctions by conducting another nuclear explosive test.

“The willful disclosure of classified information to those not entitled to it is a serious crime,” said Assistant Attorney General David S. Kris in an August 27 news release. “Today’s indictment should serve as a warning to anyone who is entrusted with sensitive national security information and would consider compromising it.”

Mr. Kim’s attorneys blasted the decision to indict him.

“In its obsession to clamp down on perfectly appropriate conversations between government employees and the press, the Obama Administration has forgotten that wise foreign policy must be founded on a two-way conversation between government and the public,” said Abbe D. Lowell and Ruth Wedgwood in an August 27 statement (pdf) on the case.

“It is so disappointing that the Justice Department has chosen to stretch the espionage laws to cover ordinary and normal conversations between government officials and the press and, in doing so, destroy the career of a loyal civil servant and brilliant foreign policy analyst,” they said.  “There is no allegation that a document was given, that any money changed hands, that any foreign government was involved, or that there was any improper motive in the type of government/media exchanges that happen hundreds of times a day in Washington.”

Mr. Kim was released pending trial on a $100,000 property bond.  A status conference in the case has been set for October 13, 2010.

In testimony before the Senate Armed Services Committee earlier this month, former Defense Secretary William J. Perry said that more criminal prosecutions were needed to deter leaks of classified information.

“When I was secretary, we had an example of an egregious leak which I thought compromised national security,” Secretary Perry told Senator McCain on August 3. “We prosecuted a case and sent the leaker to prison. And I think more examples of that would be useful in injecting better discipline in the system.”

However, he may have misspoken.  There does not seem to have been a leak prosecution during the years that he served as Secretary (1993-1997), and Dr. Perry’s office was not able to provide clarification of his remarks.

Technologies to modify the Earth’s climate are at least conceivable and, in the absence of a comprehensive national and international climate change policy, may soon emerge as practical alternatives, a new survey of the subject from the Congressional Research Service suggests.

“The term ‘geoengineering’ describes this array of technologies that aim, through large-scale and deliberate modifications of the Earth’s energy balance, to reduce temperatures and counteract anthropogenic climate change,” the CRS report said.  However, “Most of these technologies are at the conceptual and research stages, and their effectiveness at reducing global temperatures has yet to be proven.”

“Moreover, very few studies have been published that document the cost, environmental effects, sociopolitical impacts, and legal implications of geoengineering. If geoengineering technologies were to be deployed, they are expected to have the potential to cause significant transboundary effects.”  See “Geoengineering: Governance and Technology Policy” (pdf), August 16, 2010.

The Congressional Research Service — acting at congressional direction — does not permit direct public access to its publications.  Some other recent CRS reports obtained by Secrecy News include the following (all pdf).

“Federal Civil and Criminal Penalties Possibly Applicable to Parties Responsible for the Gulf of Mexico Oil Spill,” August 16, 2010.

“Public Employees’ Right to Privacy in Their Electronic Communications: City of Ontario v. Quon in the Supreme Court,” July 28, 2010.

“Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials,” August 24, 2010.

“The European Union’s Response to the 2007-2009 Financial Crisis,” August 13, 2010.

“Turkey: Politics of Identity and Power,” August 13, 2010.

Intelligence personnel who are trying to elicit information from a prisoner or a detainee can effectively do so in a non-coercive manner, according to the Intelligence Science Board (ISB), an official advisory group to the Director of National Intelligence.

“The United States and other democracies can benefit from exploring and learning more in the area of non-coercive intelligence interviewing,” the Board said in a sequel (pdf) to its December 2006 report on “Educing Information” (pdf).  That earlier study found that existing U.S. intelligence interrogation practices were not scientifically well-founded.  “The study team could not discover an objective scientific basis for the techniques commonly used by U.S. interrogators.”

The newly disclosed follow-on report, dated April 2009, “is written primarily for individuals concerned with ‘high-value’ detainees and those who focus mainly on strategic interrogation.”  It provides a survey of behavioral science perspectives on topics relevant to the interrogation process — including persuasion, power, stress, resistance, and memory — as well as two case studies of actual interrogations.

A copy of the ISB report was obtained by Secrecy News.  See “Intelligence Interviewing: Teaching Papers and Case Studies,” A Report from the Study on Educing Information, Intelligence Science Board, April 2009 (211 pages).

The ISB report adopted the new term “intelligence interviewing” instead of “interrogation” in part because it said “interrogation” is freighted with stereotypes often involving coercion.  The report emphasized the utility of non-coercive interrogation but acknowledged the difficulty of empirically establishing its superiority to coercive questioning.

“During Phases I and II, contributors could find no studies that compare the results of ‘coercive’ interrogations with those of non-coercive intelligence interviews. It is also difficult to imagine how such studies might be conducted in a scientifically valid, let alone morally acceptable, manner.”

The ISB study notably dissected the “ticking time bomb” scenario that is often portrayed in television thrillers (and which has “captured the public imagination”).  The authors patiently explained why that hypothetical scenario is not a sensible guide to interrogation policy or a justification for torture.  Moral considerations aside, the ISB report said, coercive interrogation may produce unreliable results, foster increased resistance, and preclude the discovery of unsuspected intelligence information of value (pp. 40-42).

“There also are no guarantees that non-coercive intelligence interviewing will obtain the necessary information,” the report said. “However, the United States has important recent examples of effective, non-coercive intelligence interviewing with high value detainees.”

The ISB said its report could “provide experienced and successful interviewers a more formal understanding of the approaches they may have used instinctively. It may also help them to communicate their expertise to their colleagues… This [report] is intended to foster thinking and discussion and to encourage knowledge-based teaching, research, and practice. It does not, and cannot, offer doctrine or prescriptions. It is a start, not an end.”

The mission of the Intelligence Science Board is “to provide the Intelligence Community with outside expert advice and unconventional thinking, early notice of advances in science and technology, insight into new applications of existing technology, and special studies that require skills or organizational approaches not resident within the Intelligence Community.”

Rare earth elements — of which there are 17, including the 15 lanthanides plus yttrium and scandium — are needed in many industrial and national security applications, from flat panel displays to jet fighter engines.  Yet there are foreseeable stresses on the national and global supply of these materials.

“The United States was once self-reliant in domestically produced [rare earth elements], but over the past 15 years has become 100% reliant on imports, primarily from China,” a new report (pdf) from the Congressional Research Service observes.  “The dominance of China as a single or dominant supplier […] is a cause for concern because of China’s growing internal demand for its [own rare earth elements],” the report said.

The CRS report provides background and analysis on the uses of rare earth elements, existing reserves, national security applications, the global supply chain and relevant legislation.  See “Rare Earth Elements: the Global Supply Chain,” July 28, 2010.

In “The Twilight of the Bombs,” the fourth and final volume of his epic history of the nuclear era, author Richard Rhodes examines “how the dangerous post-Cold War transition was managed, who its heroes were, what we learned from it, and where it carried us.”

Covering the years 1990-2010, from the collapse of the Soviet Union onward, much of the latest history is familiar.  But by focusing on nuclear weapons development, proliferation and testing, Rhodes fashions his own narrative arc, enriched by new interviews and insights.

In the end, he sees a hopeful trajectory of “nuclear limitation and foreclosure:  from Mikhail Gorbachev’s and Ronald Reagan’s initiatives to end the Cold War, to the voluntary disarming of the former Soviet republics and the security of nuclear materials, to the U.S. and Russia’s deepening mutual arms reduction, to the up-and-down negotiations with North Korea that have nevertheless prevented another Korean war, to international diplomatic pressure brought to bear effectively on India and Pakistan, to the persistent march forward of negotiations toward treaties to limit nuclear testing and proliferation.”  (However, Rhodes does not specifically address the case of Iran’s nuclear program, as noted by Tim Rutten in an August 18 review in the Los Angeles Times.)

In the concluding pages of the book, Rhodes posits an analogy between previous campaigns to eradicate or limit disease and current efforts to abolish nuclear weapons, which he deems both necessary and feasible.  “In 1999, for the first time in human history, infectious diseases no longer ranked first among causes of death worldwide” thanks to the discipline of public health.  In a similarly efficacious way, he says, the ingredients of the analogous discipline of public safety against nuclear weapons “have already begun to assemble themselves: materials control and accounting, cooperative threat reduction, security guarantees, agreements and treaties, surveillance and inspection, sanctions, forceful disarming if all else fails.”

“The Twilight of the Bombs” cannot match Rhodes’ first volume on “The Making of the Atomic Bomb” for sheer mythological power, but it is fluidly and eloquently written.  The author’s prose ranges widely, sometimes vertiginously:  In the book’s Index, Scott Ritter comes right after Rainer Maria Rilke, the Ayatollah Khomeini is just above Nicole Kidman, and Sig Hecker of Los Alamos is separated from Jesse Helms by G.W.F. Hegel.

Mr. Rhodes (who I should say has been a consistent supporter of Secrecy News) ends the book with Acknowledgments, including a valentine to his wife:  “She, not thermonuclear fusion, makes the sun shine.”

The Obama Administration plans to increase the frequency, rigor and realism of emergency planning exercises involving senior government officials and emergency responders in an effort to improve the nation’s emergency preparedness.

“This administration understands and believes in the importance of exercising [for national emergencies] and requires that the most senior levels of government are involved in all aspects,” wrote Homeland Security Secretary Janet Napolitano in an internal memorandum (pdf) last week.

“Much has been accomplished through the implementation of the first generation of a national exercise program, however it is also critical that we continue to improve these programs,” she wrote.

The Secretary directed the Federal Emergency Management Agency to “develop a two-year progressive exercise program that increases the total number of exercises and culminates in a full-scale biennial intergovernmental National Level Exercise.”

“Drills should be primarily no notice, or limited notice, and be conducted periodically during the two-year cycle by partners across DHS and the interagency, focusing on testing a single specific operation or function.”

Functional level exercises are to be conducted “in settings such as they would experience during an actual event.”  The culminating National Level Exercise is to involve “actual ‘boots on the ground’ responders, with exercise elements driven by field actions rather than purely by scripted injects.”

The National Exercise Program currently includes a planned 2011 exercise on terrorism, and a 2012 exercise on cyber terrorism.  These previously planned exercises should adhere to the new standards “to the maximum degree practicable,” Secretary Napolitano indicated.

“[A]n effective exercise program is the cornerstone of our nation’s collective preparedness and resilience.  Only by testing… can we be sure of the effectiveness of our plans for preventing, responding to an recovering from disasters and acts of terrorism and the preparedness of those charged with supporting and protecting the American people,” she wrote.

A November 2008 report from the Congressional Research Service examined “Homeland Emergency Preparedness and the National Exercise Program: Background, Policy Implications, and Issues for Congress” (pdf).

The White House issued an executive order last week to formalize procedures for sharing classified information with state, local and private sector entities.  The new order does not alter or amend previous orders on national security classification or access to classified information, but it should facilitate increased sharing of classified information with non-federal officials.

The closest thing to a policy innovation in the new order seems to be a provision that “a duly elected or appointed Governor of a State or territory… may be granted access to classified information without a background investigation” once he or she has signed a non-disclosure agreement and “absent disqualifying conduct as determined by the clearance granting official” (Section 1.3b).

“Information sharing” in this context is a paradoxical term that also implies “information non-sharing” with those who are not cleared for access to the information.  For that reason it is a mixed blessing that some otherwise qualified persons may choose to forgo. See Executive Order 13549 on “Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities,” August 18, 2010.

Newly published Congressional hearing volumes on national security-related topics include the following (all pdf).

“Nomination of Stephen W. Preston to be General Counsel of the Central Intelligence Agency and Robert S. Litt to be General Counsel of the Office of the Director of National Intelligence,” Senate Intelligence Committee, May 21, 2009 (published August 2010).

“The Legal, Moral, and National Security Consequences of ‘Prolonged Detention’,” Senate Judiciary Committee, June 9, 2009 (published June 2010).

“National Strategy for Countering Biological Threats: Diplomacy and International Programs,” House Foreign Affairs Committee, March 18, 2010 (published June 2010).

Catastrophic flooding in Pakistan, which has displaced millions of persons over the last several weeks, submerged huge portions of the country, and crippled much of the nation’s infrastructure, is first and foremost a humanitarian crisis that requires an urgent international response.  But it also may have national, regional and global security implications.

“Environmental stresses, when combined with the other socio-economic and political stresses on Pakistan, have the potential to further weaken an already weak Pakistani state,” the Congressional Research Service observed in a new report (pdf) this month.  “Such a scenario would make it more difficult to achieve the U.S. goal of neutralizing anti-Western terrorists in Pakistan.  Some analysts argue that disagreements over water could also exacerbate tensions between India and Pakistan.”

The new CRS report “examines the potentially destabilizing effect that, when combined with Pakistan’s demographic trends and limited economic development, water scarcity, limited arable land, and food security may have on an already radicalized internal and destabilized international political-security environment.”

The CRS report does not come out and say so, but it points clearly to the conclusion that a U.S. foreign policy that gave greater emphasis to relief and reconstruction would have much to recommend it, even (or especially) from a national security point of view.  See “Security and the Environment in Pakistan,” August 3, 2010.

As is often pointed out, Congress does not permit CRS to make its publications directly available to the general public.