Secrecy News

The Senate Intelligence Committee proposal to amend the Foreign Intelligence Surveillance Act (FISA), which is under consideration on the Senate floor today, “does not contain adequate protections to guard against the kind of Executive abuse that occurred with the [Terrorist Surveillance Program] and related programs,” according to a new Senate Judiciary Committee report.

“Congress is prepared to grant the Administration the authority it needs to surveil targets overseas. But the unilateral decision by the Executive in the years following 9/11 to surveil Americans’ communications contrary to FISA illustrates the need for Congress to provide clear statutory protections for surveillance that impacts Americans’ privacy rights.”

“Additional protections are of critical importance,” the Senate Judiciary Committee report said. “The rules governing electronic surveillance affect every American and remain the only buffer between the freedom of Americans to make private communications and the ability of the Government to listen in on those communications.”

“In the Committee’s view, the improvements contained in the Senate Intelligence bill do not go far enough in ensuring that Americans’ privacy rights are safeguarded. Additional protections can be added without interfering with the flexibility the Government needs to conduct overseas surveillance.”

See “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007,” Senate Judiciary Committee, January 22.

The U.S. Air Force last week issued revised procedures (pdf) for securely maintaining and transporting nuclear weapons.

The move follows an incident last August in which crewmen at Minot Air Force Base in North Dakota mistook missiles armed with nuclear weapons for unarmed missiles and flew them across the country without authorization.

Though the Minot AFB event is not mentioned in the new procedures, the origins of that mishap are implicitly addressed: “Do not co-mingle nuclear and non-nuclear munitions/missiles … in the same storage structure, cell, or WS3 [weapons storage and security system].”

“Nuclear weapons require special consideration because of their political and military importance, destructive power, cost, and potential consequences of an accident or unauthorized act,” the Air Force Instruction observes.

The new policy prescribes detailed auditing and tracking procedures to promote accountability of nuclear weapons, along with weapons maintenance, personnel certification, and secure transport.

The document was approved for public release.

See “Nuclear Weapons Maintenance Procedures,” Air Force Instruction 21-204, 17 January 2008.:

A rising tide of criticism of the use of the state secrets privilege to derail litigation against the government has yielded new legislation introduced in the Senate to define the privilege and to limit its use.

The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security.

But a new bill sponsored by Senators Edward M. Kennedy (D-MA) and Arlen Specter (R-PA) would provide a mechanism for protecting legitimate secrets while also permitting litigation to proceed.

“The [proposed] Act ensures that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act,” according to a description issued by Senator Kennedy’s office. “For example, a court may limit a party’s access to hearings, court filings, and affidavits, or require counsel to have appropriate security clearances.”

And crucially, “The Act clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege.”

Senator Kennedy introduced the State Secrets Protection Act (S. 2533) on January 22.

The personal story behind the controversial 1953 Supreme Court ruling that established the state secrets privilege is featured, along with other aspects of government secrecy, in the new film “Secrecy” by Peter Galison and Robb Moss.

The film premiered this past week at the Sundance Film Festival, where it was reportedly well-received. “The question of how much we should rely on methods inconsistent with our values is intelligently and elegantly handled,” wrote Los Angeles Times film reviewer Kenneth Turan.

There is a “great need” for legislation that will specifically prohibit and punish unauthorized disclosures of communication intelligence (COMINT), the U.S. military argued in a newly-released 1944 report (pdf). Such a law was in fact enacted in 1950.

“Unauthorized disclosures… have jeopardized, on several occasions, the results of many years of arduous research and have endangered the safety of our armed forces,” according to the report.

The document provides “an historical resume of some of the famous publicity leaks of the past generation,” including an account of Herbert Yardley’s “Black Chamber” and a chapter on the “effects of publicity leaks on U.S. cryptanalytical activities,” in order “to demonstrate the need for greater security precautions.”

“It is recognized that a satisfactory solution of this problem will probably encroach upon the freedom of the press and freedom of speech,” the authors write in the late World War II-era report. “The issues at stake are so important, however, that some action must be taken in the interest of national safety.”

The 1944 report was released by the National Security Agency in response to a request from researcher Michael Ravnitzky, who provided a copy to Secrecy News.

See “The Need for New Legislation Against Unauthorized Disclosures of Communication Intelligence Activities,” report to the U.S. Army-Naval Communication Intelligence Coordinating Committee, Special Report No. 1, June 9, 1944.

In 1950, Congress enacted legislation to protect communications intelligence from unauthorized disclosure (18 U.S.C. 798). That statute embodied several of the specific recommendations formulated in the 1944 report.