Noteworthy new congressional hearing records on intelligence, national security or secrecy that have been published in the last month or two include the following.

“Congressional Oversight of Intelligence Activities,” hearing before the Senate Intelligence Committee, November 13, 2007.

“Implementation of the Office of Government Information Services,” hearing before the House Committee on Oversight and Government Reform, September 17, 2008.

“FISA for the 21st Century” (pdf), hearing before the Senate Judiciary Committee, July 26, 2006 (includes over a hundred questions and answers for the record from OLC head Steven G. Bradbury [pdf], among others).

“Sunshine in the Courtroom Act of 2007” (pdf), hearing before the House Judiciary Committee, September 27, 2007.

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part III)” (pdf), hearing before the House Judiciary Committee, June 26, 2008 (including testimony by David S. Addington and John Yoo).

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part IV),” hearing before the House Judiciary Committee, July 15, 2008 (including testimony by Douglas Feith).

The Open Source Center of the U.S. Intelligence Community has prepared a descriptive catalog of websites (pdf) concerning the defense and security of Chile.

“The Chilean defense establishment consists of military and civilian institutions, many of which have their own websites featuring institutional services, news, and academic reports,” the OSC report explains. “Many academic contributions on defense issues are featured on these sites. Defense blogs and some related websites also carry unofficial information on Chilean military issues. A few sensitive defense institutions, including intelligence services and related industries, do not have their own websites. An appendix [to the report] explains the Chilean defense structure.”

Like many other OSC products, the unclassified, 12-page report has not been approved for public release.  But a copy was obtained by Secrecy News.  See “Guide to Selected Chilean Defense Websites,” Open Source Center Media Aid, 29 April 2009.

The Chief Justice of the U.S. Supreme Court has appointed two new judges to the eleven-member Foreign Intelligence Surveillance Court, a spokesman for the Court said today.

Judge Thomas F. Hogan of the D.C. District Court and Judge Susan Webber Wright of the Eastern District of Arkansas were each appointed to seven-year terms on the Court, expiring May 18, 2016, said spokesman Sheldon Snook.

They replace Judge Robert C. Broomfield and Judge Colleen Kollar-Kotelly, whose terms on the FIS Court expired today.  Judge John D. Bates, who was appointed to the Court in 2006, takes over from Judge Kollar-Kotelly as Presiding Judge of the Court.

The FIS Court reviews government applications for electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act of 1978. The current membership of the Foreign Intelligence Surveillance Court may be found here.

During calendar year 2008, the Foreign Intelligence Surveillance Court approved 2,083 applications for authority to conduct electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act, according to a new annual report to Congress (pdf) from the Justice Department.  The Court made substantive modifications to two applications and denied one application.

This is a decrease from calendar year 2007 (pdf), when the Court approved 2,370 applications for electronic surveillance and physical search, modified 86 applications, and denied three (and one “in part”).

The new report, transmitted May 14, 2009, also states that in 2008 the FBI made 24,744 “national security letter” (NSL) requests for information concerning 7,225 different United States persons.  In 2007, according to newly revised figures included in the report, the FBI made 16,804 NSL requests pertaining to 4,327 different United States persons.  National security letters are obligatory demands for information or records, comparable to subpoenas but without judicial oversight.  The scope of such instruments was expanded by a provision of the USA Patriot Act.

The Congressional Research Service discussed “Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009” in a report that was updated March 16, 2009.

The late Kenneth C. Bass, who helped draft the Foreign Intelligence Surveillance Act of 1978 and who was the first Counsel for Intelligence Policy at the Justice Department, later became a critic of its implementation and a proponent of remedial measures.

In a 1994 congressional hearing, he urged lawmakers to introduce elements of an adversarial process into the FISA Court, such as appointing an advocate for the proposed target, so that judges would have a more complete and nuanced record on which to base their decisions to approve surveillance and physical search.  See “Amending the Foreign Intelligence Surveillance Act” (pdf), hearing before the House Permanent Select Committee on Intelligence, July 14, 1994.

In 2002 testimony, he reiterated this proposal and told a Senate Judiciary Committee hearing on the FISA process that it should also “obtain more information and make it public.”  Neither recommendation was acted upon, and the efficacy of the FISA as a legal constraint upon intelligence surveillance would soon be diminished by the Bush Administration’s circumvention of its procedural requirements.

Kenneth Bass was remembered in “Justice Official Helped Pen Surveillance Act” by Patricia Sullivan, Washington Post, May 2, 2009.

“Laws never prevent lawlessness,” Mr. Bass said at the 1994 hearing.  “But they are designed to check it and give somebody else a second view of what to do with it.”

Kate Martin of the Center for National Security Studies, who also testified at that hearing, told Committee members that Mr. Bass’ proposal for an adversarial review of FISA applications was unobjectionable but that by itself it would not cure the constitutional infirmities of FISA.

“The Constitution is not a perfect information gathering system for the government,” Ms. Martin said.

Although the Department of Energy is not one of the agencies that performs intelligence surveillance or physical search under the Foreign Intelligence Surveillance Act, it does occasionally play a role in providing analytical support to other agencies such as the FBI that do conduct FISA surveillance.

A recent DOE Inspector General report (pdf) noted four cases that were “referred by the FBI [to the Department of Energy Office of Intelligence] for analysis of raw data collected under FISA court orders.”  The report does not specify the nature of the raw data or the reason the four cases were referred to the Energy Department, though one may speculate that the data concerned nuclear weapons-related information rather than, say, novel designs for wind turbines.

No violations of law were found by the Inspector General, but the report said DOE improperly failed to respond to one of the four FBI FISA referrals for more than a year.  See “Letter Report on “Selected Aspects of the Department of Energy’s Activities Involving the Foreign Intelligence Surveillance Act,” DOE Inspector General, May 6, 2009.

The development of Bush Administration policies on the treatment of suspected terrorist detainees was probed yesterday at a Senate Judiciary Committee subcommittee hearing, which also led to the release of two primary source documents reflecting internal Bush Administration deliberations.

Former State Department Counselor Philip Zelikow described his efforts in 2005-6 to advance a standard that would effectively prohibit “cruel, inhuman, and degrading” treatment of detainees, a standard to which, in theory, the United States was already committed.  But the practice was something different, he said.

“The U.S. government adopted an unprecedented program of cooly calculated dehumanizing abuse and physical torment to extract information,” Mr. Zelikow testified (pdf).  “This was a mistake, perhaps a disastrous one.  It was a collective failure, in which a number of officials and members of Congress (and staffers), of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision.  Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.”

Mr. Zelikow cited two noteworthy official documents in his testimony, though these were not published on the Judiciary Committee web site.  Copies were obtained by Secrecy News.

A June 2005 memorandum (pdf) prepared by Mr. Zelikow and Gordon R. England, the acting deputy secretary of defense, proposed a comprehensive approach to detention, interrogation and prosecution of suspected terrorists, that the authors said would be compatible with existing legal standards.  But their approach was rejected by Defense Secretary Donald Rumsfeld, Mr. Zelikow recalled in his testimony.  The memorandum was reported in the New York Times (Tim Golden, “Detainee Memo Created Divide in White House,” October 1, 2006) and elsewhere was quoted at length in Angler by Barton Gellman (at pp. 347-349), but the document itself has not been made publicly available until now.  See “Elements of Possible Initiative,” June 12, 2005, marked Sensitive But Unclassified.

A second memorandum, authored by Mr. Zelikow and John Bellinger, offered an alternative legal framework predicated on acceptance of the prohibition against “cruel, inhuman, and degrading” treatment.  See “Detainees – The Need for a Stronger Legal Framework” (pdf), July 2005.

By 2006, the terms of the dispute had shifted.  The Administration affirmed the prohibition against “cruel, inhuman, and degrading” treatment, but then embraced an Office of Legal Counsel argument that said the CIA interrogation program, including water boarding and the rest, did not violate the prohibition.  Zelikow’s February 2006 critique of the OLC interpretation is said to be undergoing declassification review.  Since the classification status of that critique is entirely derivative of the now-declassified OLC memos, its full and prompt declassification is to be expected.

A new Air Force instruction (pdf) describes the use of unvouchered “intelligence contingency funds” which may be spent by the Secretary of the Air Force “for any purpose” in support of the Air Force intelligence mission.

Such funds may be expended, for example, to pay for “plaques, mementos, etc.” to be presented “as gifts or incentive awards to foreign officials.”  Contingency funds may also be used “to fund liaison functions with persons not employed by the US Government if they can assist US Air Force organizations to perform intelligence missions.”  However, “The liaison function must be conducted on a modest basis that complies with socially acceptable behavior.”

See “Intelligence Contingency Funds,” Air Force Instruction 14-101, 30 April 2009.

The leadership of the Democratic People’s Republic of Korea is portrayed in a new chart (pdf) prepared by the DNI Open Source Center (OSC).  The chart includes the names, photographs and titles of dozens of senior North Korean officials, and also presents an illustrated family tree of supreme leader Kim Jong Il.

Like most other OSC products, this document has not been approved for public release, but a copy was obtained by Secrecy News.  See “2009 Democratic People’s Republic of Korea Leadership Chart,” Open Source Center, April 15, 2009.

A schematic rendering of the organization of the North Korean government was given in “DPRK Power Structure Chart” (pdf), Open Source Center, January 2009.

A new government-wide policy on “controlled unclassified information” (CUI) is still more than a year away from implementation, but not because of any lack of attention or interest.  To the contrary, it is the subject of rather intensive policy deliberation, officials say, and is not “languishing” as Secrecy News stated on May 11.

CUI refers generally to information that is restricted in some way other than by national security classification.  Because such restrictions have taken many different forms and names — such as sensitive but unclassified, official use only, limited official use, and more than a hundred others — they have also become a disruptive barrier to communication and a source of confusion inside and outside of government.

While the nature of the problem is clear enough (i.e. a reckless proliferation of often arbitrary non-disclosure policies), and the solution is also straightforward in principle (i.e. increased restraint, uniformity and consistency), getting from here to there turns out to be an exceptionally complicated policy problem.  It involves the activities of dozens of federal agencies, as well as state, local, and tribal entities, industry and others.  It encompasses statutory and non-statutory control regimes.  A consensus policy must first be achieved, then translated into implementing regulations, and inculcated through training and education programs.

To gain traction on the problem, officials have broken it down into several sub-categories, including safeguarding policy, document designation, dissemination, and lifecycle (or “decontrol” of the information). Significant headway has been made in several of these areas, one official said.

The Obama Administration is expected to weigh in on the topic in the near future, adding new direction and impetus to the process.  But in any case, a new CUI policy is not expected to be in place before some time in Fiscal Year 2011.

“To undo decades of bad practices is going to take a while,” said William J. Bosanko, the director of the Information Security Oversight Office who is also leading the interagency CUI reform effort.

Noteworthy new additions to the literature of U.S. Army Field Manuals include the following (all pdf).

“Security Force Assistance,” FM 3-07.1, May 2009 (on support to foreign security forces).

“Legal Support to the Operational Army,” FM 1-04, April 2009 (including detainee and stability operations, but excluding the law of armed conflict).

“Visual Information Operations,” FM 6-02.40, March 2009 (referring to military photography, video recording, and the production and use of other visual media).

A new report from the Senate Foreign Relations Committee discusses what is known about Iran’s potential for developing nuclear weapons, as well as what is suspected or imagined.

“There is no sign that Iran’s leaders have ordered up a bomb,” the report notes. “But unclassified interviews… make clear that Iran has moved closer to completing the three components for a nuclear weapon–fissile material, warhead design and delivery system,” the report stated.  Resolving suspicions about the potential military aspects of Iran’s nuclear program “will be one of the most difficult [issues] confronting negotiators for the two countries and the international community,” wrote Committee chairman Sen. John Kerry in his transmittal letter.

See “Iran: Where We Are Today,” A Report to the Senate Foreign Relations Committee, May 4, 2009.

Similarly, “We do not know whether Iran currently intends to develop nuclear weapons, although we assess Tehran at a minimum is keeping open the option to develop nuclear weapons by continuing to develop a range of technical capabilities that could be applied to producing nuclear weapons, if a decision is made to do so,” according to another report (pdf) drafted for the U.S. Intelligence Community by the CIA’s Weapons Intelligence, Nonproliferation, and Arms Control Center (WINPAC).

See “Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 January Through 31 December 2008,” Unclassified Report to Congress, March 2009.