SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 24
April 6, 2015

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

TWO NEW JUDGES APPOINTED TO FISA COURT

The Chief Justice of the United States has named two new judges to the eleven-member Foreign Intelligence Surveillance Court (FISC), the Court announced last week.

Chief Justice Roberts designated Judge James P. Jones of the Western District of Virginia and Judge Thomas B. Russell of the Western District of Kentucky to serve on the FISC beginning May 19, 2015. Judge Jones and Judge Russell were both nominated to the federal bench by President Bill Clinton. The new FISC appointees will replace Judge Mary A. McLaughlin and Judge James B. Zagel, who will rotate off the Court on May 18. The current membership of the FISA Court is listed here:

The Foreign Intelligence Surveillance Court rules on applications for electronic surveillance and physical search ("and other investigative actions") under the Foreign Intelligence Surveillance Act. In recent years, the Court has also secretly interpreted intelligence surveillance law in ways that were unexpected and counterintuitive, authorizing the collection of all domestic telephone metadata records.

The evolution of the Foreign Intelligence Surveillance Court was critically examined in a report last month from the Brennan Center for Justice.

Due to changes in law and technology, the FISA Court has "veer[ed] off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs," wrote Liza Goitein and Faiza Patel of the Brennan Center.

"It is questionable whether the court's new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact," they wrote. See What Went Wrong with the FISA Court, Brennan Center, March 18.

Former Justice Department official Carrie Cordero took issue with some of the authors' recommendations for changes to the Court on the Lawfare blog last week.

The Congressional Research Service issued several reports last year on possible reforms to the FISA Court:

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview, March 31, 2014:

Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, August 26, 2014:

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014:

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014:

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions, February 24, 2014:

DHS SEEKS INCREASE IN DOMESTIC HUMINT COLLECTION

The Department of Homeland Security aims to increase its domestic human intelligence collection activity this year, the Department recently told Congress.

In a question for the record from a September 2014 congressional hearing, Rep. Paul C. Broun (R-GA) asked: "Do we currently have enough human intelligence capacity--both here in the homeland and overseas--to counter the threats posed by state and non-state actors alike?"

The Department replied, in a response published in the full hearing volume last month (at p. 64):

"DHS is working on increasing its human intelligence-gathering capabilities at home and anticipates increasing its field collector/reporter personnel by 50 percent, from 19 to approximately 30, during the coming year."

"We are also training Intelligence Officers in State and major urban area fusion centers to do intelligence reporting. This will increase the human intelligence capability by additional 50-60 personnel."

The projected increase in DHS HUMINT collection activity was not specifically mentioned in the Department's FY 2015 budget request.

Human intelligence collection in this context does not necessarily mean that the Department is running spies under cover. According to a 2009 report from the Congressional Research Service (footnote 38), "For purposes of DHS intelligence collection, HUMINT is used to refer to overt collection of information and intelligence from human sources. DHS does not, generally, engage in covert or clandestine HUMINT."

In any case, "The DHS Intelligence Enterprise has increased intelligence reporting, producing over 3,000 reports in fiscal year 2014," DHS also told Rep. Broun.

A June 2014 report from the Government Accountability Office found fault with some of that reporting, which is generated by the DHS Office of Intelligence and Analysis (I&A).

"I&A customers had mixed views on the extent to which its analytic products and services are useful," GAO found. See DHS Intelligence Analysis: Additional Actions Needed to Address Analytic Priorities and Workforce Challenges, GAO report GAO-14-397, June 2014:

DHS concurred with the resulting GAO recommendations.

CULTURAL UNDERSTANDING IN U.S. ARMY DOCTRINE

"Understanding culture is essential in conducting irregular warfare."

That is the opening sentence in the introduction to a new U.S. Army publication on Cultural and Situational Understanding.

"Irregular warfare requires a deliberate application of an understanding of culture due to the need to understand a populated operational environment, what specifically is causing instability, the nature of the threat, and the ability to work with host-nation governments and security forces."

The new Army doctrine on cultural understanding emerges from and builds upon existing Army counterinsurgency doctrine. It is "outward looking" and does not pause to contemplate the cultural foundations of the Army itself. See Cultural and Situational Understanding, Army Techniques Publication (ATP) 3-24.3, April 2015:

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

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