SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 46
May 9, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

JUDGE MOSMAN NAMED TO FOREIGN INTELLIGENCE SURVEILLANCE COURT

Chief Justice John Roberts has appointed Judge Michael W. Mosman of the District of Oregon to serve as a judge on the United States Foreign Intelligence Surveillance Court.

The appointment was effective May 4, 2013, and will extend through May 3, 2020, said Mr. Sheldon Snook, a spokesman for the Court.

Judge Mosman replaces Judge Roger Vinson, whose term on the surveillance court expired on May 3, 2013.

Judge Mosman, who was appointed to the bench by President George W. Bush, is generally considered a conservative. But last March he drew criticism from some on the political right after he granted bail to one Reaz Qadir Khan, who was charged with conspiracy to provide material support to terrorists. Judge Mosman ordered Khan's release over the government's objections after he determined that the defendant was not a flight risk or a danger to the community.

"Incredibly, the judge, Michael Mosman, a George W. Bush appointee, allowed Khan to walk free from the federal courthouse pending trial," complained the conservative watchdog group Judicial Watch in a March 11 posting.

The eleven-member Foreign Intelligence Surveillance Court reviews applications from government agencies for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

In 2012, the Court approved 1,788 applications for electronic surveillance and denied none, as noted in a report to Congress last month.

NASA TECHNICAL REPORT DATABASE PARTLY BACK ONLINE

The website of the NASA Technical Reports Server (NTRS), a massive collection of aerospace-related records, was disabled in March due to congressional concerns that it had inadvertently disclosed export-controlled information. ("NASA Technical Reports Database Goes Dark," Secrecy News, March 21; "Database Is Shut Down by NASA for a Review," New York Times, March 22.)

The site is now active again, though hundreds of thousands of previously released documents have been withheld pending review.

Rather than conducting a focused search for actual export-controlled information and then removing it, as would have seemed appropriate, NASA blocked access to the entire collection. The agency acted under pressure from Rep. Frank Wolf (R-VA) of the House Appropriations Committee while it assessed the situation.

Now many of the NTRS records have been restored, including open literature publications, magazine articles, and other documents that were already in the public domain in any case. But hundreds of thousands of others still await a formal export control review to certify them for public release. The multi-phase process was described in a NASA email exchange that was released under the Freedom of Information Act.

An air of futility surrounds the whole exercise. Much of the NASA collection has been mirrored on foreign websites, wrote Keith Cowing of NASA Watch, while other withheld reports can be purchased in hardcopy on eBay.

MAKING GOVT INFORMATION OPEN AND MACHINE READABLE

An executive order issued by President Obama today directs that "the default state of new and modernized Government information resources shall be open and machine readable."

"As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans' lives and contributes significantly to job creation," states Executive Order 13642 on Making Open and Machine Readable the New Default for Government Information.

The new order was welcomed by the Sunlight Foundation, a proponent of open access to government data, particularly because it establishes a requirement to produce an inventory of "datasets that can be made publicly available but have not yet been released." That will facilitate enforcement and advancement of the open data agenda, Sunlight said.

While one wants to believe in the efficacy of the order and to affirm the good faith intentions behind it, it is necessary to recognize how remote it is from current practice, particularly in the contentious realm of national security information.

The CIA, for example, has stubbornly refused to release the contents of its CREST database of declassified documents, even though the documents contained there are entirely declassified. The CREST database is not open, it's not machine-readable, and you can't have a copy.

Meanwhile, the Obama White House itself has refused to publish even its unclassified Presidential Policy Directives (with a few exceptions), forcing requesters to litigate for access, or to surrender.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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