An Ignoble Experiment

2. NNSA needs to reevalute proposed expansion of biological research labs, assess needs

Since mid-June, the number of illegal immigrants - including scores of unaccompanied children - crossing into Texas have "gone down considerably," Homeland Secretary Jeh Johnson said Aug. 9.

"For example, on June 10, there were 1,628 apprehensions of migrants crossing the border into South Texas, including 455 unaccompanied children," he said in prepared remarks to the American Bar Association's annual convention. "Over the last two weeks, total daily apprehensions in South Texas ranged from 700 to 500, including only about 60-120 unaccompanied kids a day."

Still, the number of apprehensions are higher than the same time last year, he added.

In fiscal 2014, nearly 63,000 unaccompanied minors, up to 17 years old, have been apprehended through July 31, more than double from the prior fiscal year, according to the latest DHS statistics. Of those apprehended, nearly 48,000 have come from Honduras, Guatemala and El Salvador where U.S. officials have said that poverty and violence are the main reasons for children and others migrating north through Mexico to the U.S.

In his remarks to the ABA, Johnson also said DHS is "disappointed" that Congress left for recess without providing additional funding that the White House requested.

President Obama has asked Congress for about $3.7 billion in emergency appropriations to provide additional resources and increase capacity at numerous federal agencies, including DHS, Justice Department, Health and Human Services Department and others.

While the House passed two bills including one providing nearly $700 million in supplemental funds to various agencies, the Senate failed to pass a proposed $3.5 billion bill to deal with the border crisis. Congress adjourned for a five-week recess, starting Aug. 1.

"You can't fly an airplane without fuel, and I cannot fund a massive immigration enforcement effort without money," said Johnson in his prepared remarks. "To sustain our campaign, I therefore had no choice but to re-program hundreds of millions of dollars away from other vital homeland security missions. There were no good choices."

For more:
- read Jeh Johnson's entire prepared remarks to the ABA
- view the latest DHS statistics on the apprehensions of unaccompanied minor children

Read more about: Jeh Johnson
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By Dibya Sarkar

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3. In letter, federal judge criticizes Senate bill aimed at reforming NSA surveillance programs

The National Nuclear Security Administration should reevaluate its needs for biological research facilities as it considers expansion of such labs, the Energy Department's internal watchdog said in a recent audit.

The NNSA, which operates several biological research facilities in conjunction with the department, is considering a $9.5 million expansion of several labs with higher biosafety levels, or BSLs, that refer to the containment and risks associated with them, the department's inspector general said. These labs perform biological research for other government agencies in response to the increase in infectious diseases and bioterrorism threats.

Specifically, the audit (pdf) released Aug. 6 said the agency is seeking to expand its BSL-2 and BSL-3 lab capabilities at the Los Alamos National Laboratory. BSL-2 is for medium-risk agents while BSL-3 is for those that cause serious and potentially lethal infections such as anthrax.

The IG said the NNSA hadn't "fully considered the need for and cost effectiveness of additional capacity." The agency also hadn't developed a "sound basis" for measuring its use of existing facilities, which would help in determining the need for additional capacity.

For example, the audit said it could not determine whether Lawrence Livermore National Laboratory's existing BSL-3 lab could perform additional research that would be done at the proposed Los Alamos lab. The IG said information regarding the Lawrence Livermore labs' utilization rates wasn't readily available and it could not verify claims by officials there that their labs were over capacity.

NNSA, the audit said, also lacks coordinated oversight of its programs and activities in this area. The agency's mission may have been reduced - and oversight fragmented - after management responsibility of chemical and biological programs and activities were transferred to the Homeland Security Department after the 9/11 terrorist attacks, the audit added.

Although NNSA has recently begun an assessment into defining its mission requirements for biological research, the audit said the assessment will not specify what NNSA and each site will need to fulfill the mission.

In addition to determining whether NNSA needs the proposed BSL-3 and BSL-2 facilities, the inspector general recommended that the agency measure its use and capacity of existing facilities and review whether personnel costs are appropriate at such sites.

Recently, Congress has begun looking into management and safety at such biological research labs after the Centers for Disease Control and Prevention revealed that poor safety practices could have potentially exposed employees to anthrax and influenza in two separate incidents this year.

For more:
- read the Energy Department IG's report (.pdf)

By Dibya Sarkar

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4. White House, African nations announce security intiaitive to counter terrorism, other threats

A federal judge, who has served on the secret national-security court, said that certain provisions within a new Senate reform bill overhauling surveillance programs would "undermine the twin goals of protecting privacy and national security."

Judge John Bates wrote the letter (pdf) dated Aug. 5 to Sen. Patrick Leahy (D-Vt.), who recently re-introduced a new version of the USA Freedom Act aimed at reforming National Security Agency's surveillance programs. The Wall Street Journal first reported on Bates's letter.

The bill would ban NSA's bulk collection of Americans' telephone records. It would also impose greater oversight, transparency and accountability on government authorities. The proposed legislation is backed by privacy and civil liberties groups as well as the White House.

Bates, who is director of the Administrative Office of the U.S. Courts, criticized the Senate bill that would require the Foreign Intelligence Surveillance Court to appoint a special advocate. Rather than help the court in resolving a "particular novel or significant legal issue," the advocate's mandate "would be to advance legal interpretations that enhance privacy and civil liberties" with the power to "demand broad access to court records."

Bates wrote that this "would raise legal questions and impede the courts' work without furthering the interests of privacy or civil liberties."

He also wrote that the "adversarial" role of the special advocate could "actually hinder the FISC's ability to obtain complete and accurate information."

Statistics, he wrote, bear out that such courts are "hardly a 'rubber stamp,' and that the courts exert robust efforts, consistent with their roles under FISA, to ensure that the government abides by its legal obligations." FISA standards for the Foreign Intelligence Surveillance Act.

He wrote that the House version of the USA Freedom Act would actually increase resources available to the FISA courts and would be "helpful."

In this seven-page letter, Bates also pointed out other areas that the Senate bill that could raise serious legal questions or impede the work of the court.

In response to Bates's letter, Harley Geiger, senior counsel with the Center for Democracy and Technology - which supports Leahy's bill - said Bates's "concerns are not compelling reasons to eliminate the FISC reforms."

In a blog post, Geiger said a key difference between the House and Senate bills is that the "Senate version includes the mandate to argue for civil liberties and explicitly provides for the ability of the special advocates to access records relevant to the advocates' work."

Otherwise, he said, if they're not required to argue for civil liberties then they might argue for even greater government surveillance.

"A lot will depend on how the FISC and the government work with the special advocates, but that is not a reason for Congress to preemptively exclude independent, informed civil liberties perspectives from surveillance considerations," he added.

For more:
- read the letter from John Bates to Patrick Leahy (.pdf)
- read the blog post from CDT's Harley Geiger
- read Patrick Leahy's press release re-introducing the USA Freedom Act
- read the WSJ's Aug. 6 article on Bates's letter

By Dibya Sarkar

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