An ongoing modernization effort has provided China with an increasingly sophisticated and proficient naval force, the U.S. Office of Naval Intelligence (ONI) said in a new assessment (large pdf).

Notably, China has “developed the world’s only anti-ship ballistic missile,” which ONI said was “specifically designed to defeat U.S. carrier strike groups” in the event of military conflict over Taiwan.

“China’s modernization efforts have principally focused on preparing for a Taiwan conflict, with a large portion directed at developing capabilities to deter, delay, and if necessary degrade potential U.S. military intervention,” the ONI report said.

Although China has recently deployed naval vessels far from its shores to protect Chinese shipping from piracy, “it is important to note that none of these operations indicate a desire on the part of the PRC to develop a constant global presence,” ONI said.  “Beijing’s ambition appears to remain focused on the East Asian region, with an ability to protect the PRC’s maritime interests in distant seas when required.”

See “The People’s Liberation Army Navy: A Modern Navy with Chinese Characteristics,” Office of Naval Intelligence, released November 2009 (17 MB PDF file).

The new ONI analysis was first reported by Tony Capaccio in “China’s New Missile May Create a ‘No-Go Zone’ for U.S. Fleet,” Bloomberg News, November 17, 2009.

A marked increase in Chinese submarine patrols last year was reported by Hans Kristensen of the Federation of American Scientists in the FAS Strategic Security Blog.

The Congressional Research Service provided additional information in “China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress” (pdf), updated October 21, 2009.

“In recent years, China has become the world’s fastest growing automotive producer,” according to a new report (pdf) from the Congressional Research Service.

“[China’s] annual vehicle output has increased from less than 2 million vehicles in the late 1990s to 9.5 million in 2008. In terms of production volume in 2008, China has surpassed Korea, France, Germany, and the United States, trailing only Japan.”

“China’s automobile industry has continued to expand despite the global economic downturn. From January to October 2009, more than 10 million vehicles were sold in China. If such growth continues, China is on its way to becoming world’s largest auto market,” the CRS said.

See “The Rise of China’s Auto Industry and Its Impact on the U.S. Motor Vehicle Industry,” November 16, 2009.

The role of military commissions in adjudicating the cases of suspected terrorist detainees at Guantanamo and elsewhere was critically examined in two House Judiciary Subcommittee hearings last July, the records of which have just been published.

“My concern remains,” said Rep. Jerrold Nadler (D-NY), who chaired the hearings, “that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence.”

“That is not a justice system,” Rep. Nadler said.

See “Legal Issues Surrounding the Military Commissions System,” July 8, 2009;  and “Proposals for Reform of the Military Commissions System,” July 30, 2009.

The U.S. Army has published the latest edition of its Army Weapon Systems handbook, cataloging dozens of Army weapons with descriptive information, status updates, contractor relationships, and images.

“The systems listed in this book are not isolated, individual products,” the introduction says. “Rather, they are part of an integrated investment approach to make the Army of the future able to deal successfully with the challenges it will face.”

“We have received extraordinary funding support through wartime Overseas Contingency Operations funds, but they have only enabled us to sustain the current fight. We look forward to continued Congressional support to achieve our broad modernization goals.”

A 1988 U.S. Supreme Court decision known as Department of the Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and over access to classified information in particular.  Along with United States v. Reynolds, Curtiss-Wright, and a few other cases, Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims.  It has become a cornerstone of national security law as practiced today.

But the case has often been misunderstood and misrepresented, according to a new study (pdf) by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.

The Egan decision was prompted by a narrow statutory dispute:  Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)?  The court concluded that Congress had not intended to permit such review.

But in reaching that straightforward conclusion, “various passages in Egan strayed from this central issue and created confusion and misconceptions” about the scope of executive authority and the role of the courts, wrote Dr. Fisher.  Among such passages was a discussion of the President’s constitutional powers culminating in the statement that “Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”

Over time, Egan came to signify the notion that courts should grant the “utmost deference” — or even absolute deference — to the executive on issues of national security.  Citing Egan, one court in 1993 held that “the presumption of reviewability is entirely inapplicable in matters concerning national security.”  This is an extreme view that would exclude the courts altogether from national security affairs. “Egan does not support that interpretation,” wrote Fisher.  But there it is.

In a 2002 report on leaks of classified information, Attorney General John Ashcroft cited Egan in support of the proposition that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”  These statements are true except for the implication that such authority is exclusively the province of the executive.  The Attorney General conspicuously neglected to note the qualification in Egan which stated “Unless Congress has specifically provided otherwise….”

Recently, observed Fisher, some courts have presented a more nuanced reading of Egan.  In proceedings such as Al-Haramain and Horn v. Huddle, courts have rebuffed executive arguments for complete deference in cases where Congress has legislated its intent into statute.

Fundamentally, Fisher concludes, “Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information.”  See “Judicial Interpretations of Egan“ by Louis Fisher, Law Library of Congress, November 13, 2009.

Dr. Fisher will be the luncheon speaker at a day-long conference November 18 on “The State of the State Secrets Privilege” at American University Washington College of Law.

A new law review article argues that government secrets can be usefully distinguished in terms of “depth”– i.e. “how many people know of their existence, what sorts of people know, how much they know, and how soon they know…. Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal.”  See “Deep Secrecy” by David Pozen, Stanford Law Review, forthcoming.

A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment.  “A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments” by H.P. Albarelli Jr. was published this month by TrineDay, which says it “specializes in releasing books that are shunned by mainstream publishers due to their controversial nature.”

Closed child welfare hearings in the District of Columbia Family Court should be opened up, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council.  Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said.  See “Opening Child Welfare Proceedings in the Family Court of the District of Columbia,” November 4, 2009.

The U.S. intelligence community is making steady progress towards “an advanced state of intelligence integration and information sharing” regarding potential threats to the U.S. and its allies from the sea and the air, according to a new report from the Director of National Intelligence.

“Threats that terrorists and other illicit actors pose to the nation’s ports, waterways and airways remain persistent and grave, leaving no room for error or delay in this effort,” the report (pdf) said.

In response to such threats, a new ODNI National Maritime Intelligence Center has been established, new information sharing protocols have been put in place, and collaborative “communities of interest” have been nurtured. But “challenges remain” in both air and maritime intelligence “to overcome cultural and institutional resistance” to cooperation, particularly given the “sharply diminished” sense of urgency since 9/11.

One enduring difficulty is that “a lack of robust foreign and domestic HUMINT assets hampers the capability to detect and identify place and time of hostile or disruptive actions….”  However, the report says, “examining smuggling networks, front companies, and ‘gray’ actors and transactions has resulted in successful interdictions of people and cargo who clearly pose national security threats.”

The unclassified report did not mention any specific interdictions.  But last month, U.S. forces intercepted a German cargo ship carrying arms from Iran to Syria, according to an October 12 story in Der Spiegel.  Last week, reportedly based on a tip from U.S. intelligence, Israel seized a ship carrying weapons said to be supplied by Iran and intended for Hezbollah fighters.

The DNI report described the formidable intelligence challenges posed by the vast maritime and air domains.

“Worldwide maritime activity includes more than 30,000 ocean-going ships of 10,000 gross tons or greater,” operating under more than 150 different national flags, making tens of thousands of calls at 125 major U.S. ports each year.  Meanwhile, “there are over 43,000 fixed airfields worldwide with over 300,000 active aircraft, making the air domain a dense, complex operating environment with attendant reduced reaction time to potential airborne threats.”

“The economy’s inherent lack of resiliency to a major [trade or transportation] disruption event presents a substantial opportunity for those who seek to attack our institutions asymmetrically,” the report said.

The ultimate intelligence goal, therefore, is nothing less than “to create and maintain a persistent awareness of all aspects of passenger and intermodal cargo conveyance.  This single integrated team approach would permit 24/7 coverage of the entire transportation spectrum….”

The new report is heavy on management jargon, with lots of integration, alignment and leveraging said to be taking place.  (“ODNI remains committed to expediting horizontal intelligence integration supported by the implementation of data sharing standards that are breaking down barriers to information sharing, thereby facilitating rapid decision support.”)

Some of the “successes” touted by the report seem paltry or oversold, such as a “precedent setting conference” on piracy in the Horn of Africa last April which “drew more than 280 attendees.”  And the new ODNI National Maritime Intelligence Center is confusingly housed within the existing National Maritime Intelligence Center that also hosts the Office of Naval Intelligence.  But overall the 62-page report testifies to a level of bureaucratic churning within the intelligence community that rarely leaves a trace on the public record.

A copy of the new report was obtained by Secrecy News.  See “The Inaugural Report of the Global Maritime and Air Communities of Interest Intelligence Enterprises,” Director of National Intelligence, November 2009.

Last year, scientists at NASA’s Jet Propulsion Laboratory thought they had successfully rebuffed a controversial government attempt to impose new background investigations on JPL employees under NASA’s interpretation of President Bush’s Homeland Security Presidential Directive 12.  A federal appeals court concurred (pdf) with the scientists that the new investigations into employee personal histories were intrusive, “open ended,” and not “narrowly tailored” to meet legitimate government interests.  The court granted a preliminary injunction exempting the scientists from the investigations into their personal backgrounds.

But last week, Obama Administration Solicitor General Elena Kagan petitioned (pdf) the U.S. Supreme Court to overturn the appeals court ruling in favor of the scientists.  That ruling, she argued, was legally in error and “casts a constitutional cloud on the background-check process.”

Each side has warned of ominous consequences if its position is not upheld.

“These investigations have a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation’s complex technical needs,” several of the JPL scientists wrote in a 2007 letter to Congress (pdf).  “Many highly talented individuals, like much of the populace, attach great value to their personal liberties.  We are Americans, after all.”

But by finding the new background investigations improper, Solicitor General Kagan contended, the appeals court’s ruling “calls into question even the most basic inquiries… that public employers undertake for prospective employees [and] appears to render suspect the most commonplace reference checks conducted by employers.”

“We are, of course, quite disappointed,” said Robert M. Nelson, a JPL scientist and lead plaintiff in the case.  “The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives,” he said last week.

The JPL scientists are contractors, not NASA employees, who work on unclassified projects.  Government contractors who are similarly situated at other agencies (including DoE and NSF) are not required by those agencies to undergo comparable background investigations under HSPD-12.  The current dispute has no bearing on the use of background investigations in the clearance process for access to classified information.

Additional information and the latest case files can be found on the plaintiffs’ website.

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

“National Security Letters: Proposed Amendments in the 111th Congress,” October 28, 2009.

“U.S. Fossil Fuel Resources: Terminology, Reporting, and Summary,” October 28, 2009.

“Unconventional Gas Shales: Development, Technology, and Policy Issues,” October 30, 2009.

“Electoral College Reform: 111th Congress Proposals and Other Current Developments,” November 4, 2009.

“Congressional Printing: Background and Issues for Congress,” November 5, 2009.

“Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2009,” October 29, 2009.

Scripps College in Claremont, CA has been holding a semester-long series of lectures, films and other programs on the theme of “Secrets in a Democracy.” I will be speaking there on November 11.

The government’s proposed use of the state secrets privilege in a pending lawsuit was reviewed under the new state secrets policy that was established in September to limit use of the privilege, Attorney General Eric Holder announced on October 30.  But upon review the government decided that it was necessary and appropriate to assert the privilege anyway.  Furthermore, the government did not merely seek to withhold particular items of evidence from disclosure in the case, Shubert v. USA, but sought to terminate the proceeding altogether (pdf).

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so,” Attorney General Holder said.  “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” he said.

With one exception, the Attorney General cited the various steps that had been prescribed under the new policy to ensure the proper use of the privilege, including formation of a review committee, facilitation of court review, and personal approval by the attorney general.

But one aspect of the new policy that he did not address was the question of referral of the alleged misconduct to an agency inspector general for investigation. The policy (pdf) specifies that such a referral is supposed to occur whenever “invocation of the privilege would preclude adjudication of particular claims,” as it is poised to do in this case, and when the “case raises credible allegations of government wrongdoing.”  The plaintiffs in the case allege that their communications were subject to unlawful “dragnet” collection by the National Security Agency.  Somewhat artfully, the government denies that any such collection occurred “under the Terrorist Surveillance Program,” implicitly allowing for the possibility that it may have occurred under some other framework.

Another pending state secrets case brought by former DEA agent Richard Horn appears to have reached a settlement, with the government agreeing to pay the plaintiff $3 million, reported Josh Gerstein in Politico.

The Collaboration on Government Secrecy at American University’s Washington College of Law will hold a conference on “The State of the State Secrets Privilege” (pdf) on November 18.

Attempts to predict the occurrence or the likelihood of extreme acts of terrorist violence on the scale of 9/11 should be discouraged because the available data are too sparse to permit the reliable modeling of such “rare events,” according to a new report to the Pentagon (pdf) from the JASON defense advisory panel.

In a nutshell, “it is simply not possible to validate (evaluate) predictive models of rare events that have not occurred, and unvalidated models cannot be relied upon.”

On the other hand, the JASONs said, it may be possible and useful to assume that rare events are correlated with more frequent, observable events which can be reliably modeled.  If one assumes that “rare events events occur on a continuum with more frequent events,” then the latter can be used to help predict the former.

In this way, the JASONs calculated that the probability of another 9/11-scale event in the world could be about 7% in the next ten years. But for reasons they went on to enumerate, the underlying assumption of continuity between rare and frequent events is not demonstrably correct.

“Much of the work on [anticipating] rare terrorist events seems to take for granted that ‘the truth is out there’ and we can discover it in a sufficiently timely fashion with the right mixture of motivational assessment, social network analysis, capability measures, etc.”  This may not be true, they indicated.

The JASONs offered suggestions for improving the modeling process, and they stressed the need for “good, large datasets of [terrorist] events and incident data” that currently do not exist or are not widely available.  It is “surprisingly hard to obtain primary datasets” even on “straightforward” questions of terrorist event frequency and magnitude.

They cautioned that the complexity of the problem and the presumed urgency of the threat have “led some to advocate the suspension of normal standards of scientific hypothesis testing, in order to press [predictive] models quickly into operational service.” But “while appreciating the urgency, JASON believes such advice to be misguided…. Experience in the development of many other scientific fields shows the importance of adhering to rigorous scientific standards, so that small successes are tested, communicated, critically examined, reproduced, and built upon.”

“Although patient husbandry of a long-term research program may fall short of addressing the immediate operational needs, JASON believes it is the best way forward for success in the long term.” A copy of the new JASON report was obtained by Secrecy News.  See “Rare Events,” October 2009.