David Corn

David Corn

Washington Bureau Chief

Corn has broken stories on presidents, politicians, and other Washington players. He's written for numerous publications and is a talk show regular. His best-selling books include Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War.

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In Between Controversies Real and False, Obama Tackles the Biggest Issue Ever

| Wed Jun. 19, 2013 2:17 PM EDT

The news cycle can be a silly place. The Republicans in recent months have sucked up a lot of oxygen with a phony scandal (Benghazi) and a trumped-up scandal (the IRS's improper targeting of tea party groups for scrutiny). The White House has been pinned down by some of this, while also contending with a very real and front-page debate over NSA surveillance prompted by leaks regarding two of its super-secret programs. Yet one matter that is perhaps more important than all of this and that is in the news for the moment registers much lower on the media Richter scale: trying to prevent humans from blowing up the one planet they have.

On Wednesday, President Barack Obama announced a new guidance for US nuclear weapons policies, and it's a big deal. It follows Obama's 2009 Prague speech, in which he declared the long-term goal of zeroing out nuclear weapons. According to a White House fact sheet, the new guidance "narrows U.S. nuclear strategy to focus on only those objectives and missions that are necessary for deterrence in the 21st century" and "directs DOD to strengthen non-nuclear capabilities and reduce the role of nuclear weapons in deterring non-nuclear attacks." The fact sheet notes, "the guidance takes further steps toward reducing the role of nuclear weapons in our security strategy." In non-wonk terms that means the US military will alter its planning that might entail the use of a nuclear weapon. And Obama's new guidance declares that it would be reasonable to cut the level of strategic nuclear weapons by a third, beyond the lower levels Obama negotiated with the Russians for the New START treaty. Obama announced this proposed reduction in a Berlin speech.

All of this is receiving some news coverage today, but it won't draw a smidgeon of the attention the assorted quasi-scandals do. Yet the effort to lower the possibility of a nuclear war is one of the most noble and significant endeavors for a president. (Addressing climate change ranks high, too.) Still, not since the early 1980s, when literally millions of Americans took to the street to protest President Ronald Reagan's nuclear policies, has this been a hot political subject. It may be that the notion of a nuclear conflagration is too overwhelming to consider on a routine basis. Certainly, it's more fun to fret about a stolen (or not stolen) Super Bowl ring.

Arms controllers did hail Obama's actions. The Ploughshares Fund noted that the president "has finally replaced the nuclear guidance issued in 2002 by President George W. Bush with new policies that will reduce the roles, numbers and alert rates of nuclear weapons in US national security strategy." (The United States currently maintains 7000 nuclear weapons in its arsenal.) And the Union of Concerned Scientists applauded Obama's nuclear policy reform and urged him to go further, noting the United States "can maintain a robust deterrent with less than a 1,000 nuclear weapons—including strategic and tactical, deployed and stored—independent of Russia’s arsenal. Maintaining more weapons than needed undercuts U.S. security and wastes taxpayer dollars." Hawks, inevitably, will denounce Obama's attempt to reduce the United States' warehouse of nukes and to decrease the significance of nuclear weapons in contingency planning. Yet it's unlikely that a robust debate will erupt to equal the fuss over, say, Michelle Obama's latest hair style. But for anyone who is serious about divining crucial national security differences between Obama and his predecessors, Obama's new nuclear posture is significant and worthy of much notice.

Justice Dept. Loses a Round in Battle to Keep Surveillance Wrongdoing Secret

| Thu Jun. 13, 2013 11:57 AM EDT

Last week, I reported that in the midst of revelations about the National Security Agency's extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was fighting to keep secret a court opinion that determined that the government, on at least one occasion, had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

Last year, after Sen. Ron Wyden (D-Ore.) released a declassified statement noting that the Foreign Intelligence Surveillance Act (FISA) court had found that the US government had engaged in surveillance that had circumvented the law, the Electronic Frontier Foundation, a public-interest outfit that focuses on digital rights, submitted a Freedom of Information Act request to the Justice Department for any FISA court opinion or order that had reached such a conclusion. FISA court proceedings and opinions are top secret, and the Justice Department said, in essence, "get lost." EFF sued, and in the course of the proceedings, the Justice Department revealed that the FISA court in 2011 had indeed produced an 86-page opinion concluding a government surveillance program was not constitutionally kosher. But the department provided no details regarding the program that the opinion covered, and it contended the opinion could not be released because it was classified and the department itself did not have the authority to release a FISA court opinion, under that court's rules.

So EFF went to the FISA court last month and filed a motion that essentially asked the court to tell Justice that there was nothing in its rules that would prohibit a federal court from ordering the agency to release this opinion. And last week, the Justice Department responded, filing a motion arguing that the FISA court did not have jurisdiction to rule on the EFF motion. It also claimed that if the FISA court did rule in favor of EFF on this point, the court would create a precedent that could lead to the release of redacted opinions that would be "misleading to the public about the role of this Court." That is, the Justice Department was issuing a stark warning to the FISA court: Agree with EFF, and who knows what will happen. "A release involving the disclosure of some parts of a FISC opinion while concealing other parts creates a substantial risk of public misunderstanding or confusion regarding this Court's decision or reasoning," the department's motion stated.

The FISA court did not buy the agency's arguments. On Wednesday, it handed EFF a slam-dunk victory in this side battle, ruling, "The Court concludes that it has jurisdiction to adjudicate the EFF Motion and that the FISC Rules do not prohibit the Government's disclosure of the Opinion in the event it is ultimately determined by the District Court to be subject to disclosure under FOIA." So now the Justice Department cannot hide behind its claim that FISA court rules prevent it from releasing the opinion in response to a FOIA lawsuit.

EFF, though, has not yet reached the promised land. It still must beat the Justice Department in district court on the substance of the dispute: Can the government be forced to release a FISA court opinion—or portions of it—that declared a government surveillance program unconstitutional?

The FISA court, says David Sobel, a lawyer for EFF, "has made clear that there is nothing in its own rules that prohibits disclosure of the 2011 opinion we're seeking. So we go back to district court and continue our fight under FOIA, having removed DOJ's argument that it has no discretion to release FISC material." Pointing to this FISA court decision and a bill recently introduced in Congress that would require the declassification of certain FISA court opinion, Sobel says, "We might be on the verge of rethinking the degree of secrecy that surrounds all these activities." But he still has a tough fight ahead in this case, for the Justice Department has certainly demonstrated it will fiercely oppose disclosing an opinion revealing government surveillance gone wrong—even when the nation's most secret court has no objection.

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