Monthly Archives: April 2012

Litigating the Future of Nuclear Energy: United States

Until this past February 2012, the last time new nuclear power construction was approved in the United States was in 1978. But when the U.S. Nuclear Regulatory Commission (NRC) approved two proposed nuclear reactors at Plant Vogtle near Augusta, Georgia, on February 9 in a four to one vote, it took less than a week for the legal action to begin.  Nine environmental groups filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit on February 16. The concerns at the heart of their challenge – safety issues and the Fukushima disaster – were similar to those of NRC Chairman Gregory Jaczko, the sole dissenter in the commission’s vote.  Jaczko argued that Southern Company, whose company Southern Nuclear operates the Vogtle plant, had not proved it would take steps necessary to ensure the reactors could withstand an earthquake like the one that occurred in Fukushima, Japan in March 2011.  “I simply cannot authorise issuance of these licenses without any binding obligation that these plants will have implemented the lessons learned from the Fukushima accident before they operate,” he wrote.

The groups are “working to challenge the NRC’s approval of the reactors because they fail to take into account public comments received by the agency concerning the proposed reactors’ security risks, following the Fukushima disaster”, Sara Barczak, a program director at the Southern Alliance for Clean Energy, one of the groups who filed the lawsuit, told IPS.  The other groups include the Blue Ridge Environmental Defence League, Centre for a Sustainable Coast, Citizens Allied for Safe Energy, Friends of the Earth, Georgia Women’s Action for New Directions, Nuclear Information and Resource Service, Nuclear Watch South and North Carolina Waste Awareness and Reduction Network.  The Turner Environmental Clinic at Emory University Law School has been assisting with much of the legal work on the case.

A related legal challenge regarding the AP1000 reactor design by Westinghouse Electric Company, which would be used in the new Vogtle reactors, argued that the approval of the reactor design also failed to take into account the Fukushima disaster.  Those two challenges have been consolidated into one, and the groups recently filed a motion to stay further construction of the new reactors at Vogtle, which they hope will be heard within a month or so.  “We still have concerns about the ability of that reactor design to deal with seismic issues such as earthquakes….The National Environmental Policy Act (NEPA) requires that any agency has to recalibrate and reissue an Environmental Impact Statement considering the information,” Barczak said.  “They would have had to do reassessments of doses to the public, reevaluating doses to site workers and the community, the evacuation plan, how the operator would handle a multi-unit meltdown,” she explained. “It would be a fairly substantial review.”…

Excerpt, Matthew Cardinale, Legal Challenges Counter Plans for New Nuclear Reactors, IPS, April 14

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The Wild West of the Oceans; pirates, private security firms and human rights

Private security teams patrol the decks of around 40% of large vessels in the “high-risk area” that stretches from the Persian Gulf to the Seychelles in the south and the Maldives in the east. When pirates attack, these armed guards respond with flares or warning shots. This usually scares off assailants (or sends them in search of easier prey). If it fails, they fire at an attacking boat’s engine, before finally turning their sights on the pirates. No ship carrying armed guards has so far been hijacked.

Most of the companies providing these guards are British, typically started by entrepreneurial former special-forces types. A four-man team can charge $45,000 for safe passage through the high-risk area. The cost to shipowners is partly offset by savings on insurance.

The idea may seem simple but its legal framework is not. Under the United Nations Convention on the Law of the Sea a ship’s crew, including guards, must abide by the home laws of a vessel’s flag state. But these vessels ply international waters, meaning that regulation is scant. An array of standards created since 2009 suggests good practice for private security teams, but none is legally binding.

Spurred on by the International Maritime Organization (which will debate the issue at a meeting next month), governments are now trying to write rules for armed guards at sea, such as how they buy and store the lethal tools of their trade. Britain wants a voluntary set of rules in place by the end of 2012, detailing the acceptable use of deadly force and systems for company auditing and accountability. It may suggest and define a “proportional” response to pirate attacks, along with approved weapon types and standards of training. Other countries are making moves too. American law now allows for the self defence of US-flagged ships within tight rules of engagement. India also allows armed guards; Greece is considering a similar step. The Japanese government is pondering a change to its strict laws, which prohibit civilian armed guards on ships.

The United Arab Emirates will this year start allowing armed international teams into its ports. At present most teams use Sri Lanka, Oman or Djibouti for weapons storage between jobs. They run the risk of prosecution if they carry arms in the territorial waters of Yemen and other states. John Bennett, of the Florida-based Maritime Protective Services says some firms play safe by throwing their guns overboard before heading home.

Pressure for new rules has come in part from human-rights organisations. Unknown numbers of Somali pirates have been killed at sea since 2005 as a result of clashes with naval and private protection forces. In at least one incident, security guards killed Somali fishermen, mistaking them for pirates. Such incidents evoke bad memories. The last thing that anyone wants, says Steven Jones, director of the Security Association for the Maritime Industry (SAMI), is a “Blackwater of the sea” (Blackwater, now renamed Academi, is a private security firm which was sued in Iraq after the shooting of 17 civilians. It denies any wrongdoing.)

The new British rules may help to shape those adopted by other countries in future. They emphasise transparency, with the aim of differentiating respectable companies from domestic or international “mavericks”. But complying with them will be voluntary and is likely to involve extra costs. Firms may simply move to territories with less demanding regimes. That could create two tiers in the security industry: one that is respectable and regulated, and one that lives by improvisation, not by the law. A bit like the pirates.

Piracy and private security:Laws and guns, Economist, Apr. 14,2012, at 69

The United States Defense (or Offense) Clandestine Service

The Defense Department has begun a new effort to better integrate defense intelligence with the broader intelligence community and make the department a better, more versatile organization, a senior Pentagon spokesman told reporters today.  “What we’ve done here is we’ve formed a new effort here called the Defense Clandestine Service,” said Navy Capt. John Kirby, the deputy assistant Secretary of Defense for media operations. “It’s essentially designed to integrate defense intelligence capabilities with the broader intelligence community by leveraging unique military capabilities.  “It’s also designed to further professionalize our intelligence workforce and offer some career progression inside the intelligence community,” Kirby added. “And we’ll also provide general direct support, not only to DOD collection, but also to the intelligence community’s collection.”  Kirby said the intent is to use “existing capabilities and existing personnel to better focus on this particular kind of intelligence.”  He noted this new, joint effort, which has already began, is intended to be complementary to other intelligence efforts.

“I think the practical result will be a rebalancing of our efforts and our focus on the human side of intelligence collection,” Kirby said. “We’re very, very proficient at the technical side of intelligence collection and I think this will help us get a little bit better at the human intelligence effort.”  Another benefit of this new effort, according to Kirby, will be better career progression for military officers in the intelligence community as “another professional track for they can pursue.”

Kirby noted while the Defense Clandestine Service is a DOD initiative, it will be in support and complementary to the Director of National Intelligence’s work.  “Yes, there are other intelligence communities who do this and they will continue to do this,” Kirby said. “This isn’t about supplanting anybody, it’s not about taking over anything, it’s not about militarization of intelligence collection; it’s about making us better contributors to the overall team effort.”

Kirby emphasized this initiative will build upon the best intelligence practices and lessons learned during the past decade.  “We’re a learning organization and we’ve learned a lot over the last 10 years,” he said, “and one of the things we’ve learned is that we can do better in this realm and we can contribute better to the intelligence community across the interagency in this realm.”

New Defense Service Enhances Intelligence Capabilities, American Forces Press Service (DOD Press Release), April 24, 2012

Water Experiments: water diversion and drought

In the past year alone, say Chinese officials, levels in nine lakes on the Yunnan-Guizhou plateau (South China) have dropped by 70cm, marking a total loss of 300m cubic metres of water. The regional drought is now in its third year, and in that time 270-odd rivers and 410 small reservoirs have dried up in Yunnan alone. Residents at lower elevations are better able to tap into groundwater, and have so far been able to carry on as before.

Even so, not only hilltop farmers are affected. Residents in Yunnan’s capital, Kunming, suffer periodic stoppages in supplies of tap water. West of the city, dry conditions are causing forest fires. The region’s growers of such valuable crops as tea and medicinal herbs have suffered, causing prices of those commodities to soar. Hydropower production has also fallen with water levels. Officials report that last year nationwide output rose by 9% year-on-year, but in the southern provinces of Yunnan, Guizhou, Guangdong, Guangxi and Hainan drought caused a 47% fall in reserve power capacity.

The repercussions threaten to affect an ambitious central-government project, imperial in scale, to transfer vast amounts of water from the south to the parched north of the country. China has already invested 137 billion yuan ($22 billion) in what it calls the South-North Water Diversion Project, and is set to invest another 64 billion yuan this year. The idea is to pump water from the Yangzi river northward through pipes and canals along three separate routes. Priority is given to the eastern route, which by 2014 is expected to bring 1 billion cubic metres of water a year to Beijing—a quarter of the capital’s annual supply.  From its inception, the vast scheme has suffered both delays and criticism. One concern has been the cost, both of the initial construction and of the expense of pumping so much water over such distances. The project has also required that at least 330,000 residents along its course accept being relocated.

The river systems of Yunnan and Guizhou figure only modestly in the planned supply chain of the South-North Water Diversion Project. But if the causes of the drought in these provinces have to do with changing global climate patterns, the main assumption underlying the project—that of permanent water abundance in the south—may not hold up.  Liu Xiaokang of the Yunnan Green Environment Development Foundation, an NGO in Kunming, believes the causes are mixed. Global climate may be affecting patterns of precipitation, he says. But his group also notes that the parts of Yunnan that are hardest hit are those where development has been fastest and deforestation most extensive.  Marco Gemmer of China’s National Climate Centre says droughts across southern China are linked to changing patterns in other parts of the world, such as anomalies in the Arctic oscillation or in the ocean current La Niña. Short-term droughts have occurred in the region for all of recorded history, but they may now occur with far greater frequency.  His colleague, Professor Jiang Tong, warns of problems with the transfer project if both south and north suffer drought at the same time. The situation, he adds, is complicated by the Yangzi’s Three Gorges dam. It provides massive amounts of hydroelectricity to the Yangzi basin. He is concerned about what will happen should Shanghai need more power at the same time that Beijing needs more water.

Water Shortages: Ms Fang’s parched patch, Economist, April 14, 2012, at 56

The Drone War in Yemen; surgical strikes or a relentless signature campaign?

The CIA is seeking authority to expand its covert drone campaign in Yemen by launching strikes against terrorism suspects even when it does not know the identities of those who could be killed, U.S. officials said.   Securing permission to use these “signature strikes” would allow the agency to hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.

The practice has been a core element of the CIA’s drone program in Pakistan for several years. CIA Director David H. Petraeus has requested permission to use the tactic against the al-Qaeda affiliate in Yemen, which has emerged as the most pressing terrorism threat to the United States, officials said.  If approved, the change would probably accelerate a campaign of U.S. airstrikes in Yemen that is already on a record pace, with at least eight attacks in the past four months.  For President Obama, an endorsement of signature strikes would mean a significant, and potentially risky, policy shift. The administration has placed tight limits on drone operations in Yemen to avoid being drawn into an often murky regional conflict and risk turning militants with local agendas into al-Qaeda recruits.  A senior administration official, who like others spoke on the condition of anonymity to discuss sensitive internal deliberations, declined to talk about what he described as U.S. “tactics” in Yemen, but he said that “there is still a very firm emphasis on being surgical and targeting only those who have a direct interest in attacking the United States.”  U.S. officials acknowledge that the standard has not always been upheld. Last year, a U.S. drone strike inadvertently killed the American son of al-Qaeda leader Anwar al-Awlaki. The teenager had never been accused of terrorist activity and was killed in a strike aimed at other militants.  Some U.S. officials have voiced concern that such incidents could become more frequent if the CIA is given the authority to use signature strikes.  “How discriminating can they be?” asked a senior U.S. official familiar with the proposal. Al-Qaeda’s affiliate in Yemen “is joined at the hip” with a local insurgency whose main goal is to oust the country’s government, the official said. “I think there is the potential that we would be perceived as taking sides in a civil war.”  U.S. officials said that the CIA proposal has been presented to the National Security Council and that no decision has been reached. Officials from the White House and the CIA declined to comment.

Proponents of the plan said improvements in U.S. intelligence collection in Yemen have made it possible to expand the drone campaign — and use signature strikes — while minimizing the risk of civilian casualties.  They also pointed to the CIA’s experience in Pakistan. U.S. officials said the agency killed more senior al-Qaeda operatives there with signature strikes than with those in which it had identified and located someone on its kill list.  In Pakistan, the CIA “killed most of their ‘list people’ when they didn’t know they were there,” said a former senior U.S. military official familiar with drone operations.  The agency has cited the Pakistan experience to administration officials in arguing, perhaps counterintuitively, that it can be more effective against al-Qaeda’s Yemen affiliate if it doesn’t have to identify its targets before an attack. Obama, however, ruled out a similar push for such authority more than a year ago.

The CIA, the National Security Agency and other spy services have deployed more officers and resources to Yemen over the past several years to augment counterterrorism operations that were previously handled almost exclusively by the U.S. Joint Special Operations Command (JSOC).

The CIA began flying armed drones over Yemen last year after opening a secret base on the Arabian Peninsula. The agency also has worked with the Saudi and Yemeni intelligence services to build networks of informants — much the way it did in Pakistan before ramping up drone strikes there.

The agency’s strategy in Pakistan was centered on mounting a drone campaign so relentless that it allowed no time between attacks for al-Qaeda operatives to regroup. The use of signature strikes came to be seen as critical to achieving that pace.  The approach involved assembling threads of intelligence from multiple sources to develop telltale “signatures” of al-Qaeda activity based on operatives’ vehicles, facilities, communications equipment and patterns of behavior.  A former senior U.S. intelligence official said the CIA became so adept at this that it could tell what was happening inside an al-Qaeda compound — whether a leader was visiting or explosives were being assembled, for example — based on the location and number of security operatives surrounding the site.  The agency might be able to replicate that success in Yemen, the former intelligence official said. But he expressed skepticism that White House officials, including counterterrorism adviser John O. Brennan, will approve the CIA’s request.  The situation in Pakistan’s tribal territory “is far less ambiguous than in Yemen,” the former official said. “Brennan has been deliberate in making sure targets we hit in Yemen are terrorist targets and not insurgents.”  As a result, the CIA has been limited to “personality” strikes in Yemen, meaning it can fire only in cases where it has clear evidence that someone on its target list is in a drone’s crosshairs.  Often, that requires information from multiple sources, including imagery, cellphone intercepts and informants on the ground….

Which U.S. entity is responsible for each strike remains unclear. In Pakistan, the CIA carries out every drone strike. But in Yemen, the United States has relied on a mix of capabilities, including drones flown by the CIA and the Joint Special Operations Command, as well as conventional military aircraft and warships parked off the coast.  The JSOC has broader authority than the CIA to pursue militants in Yemen and is not seeking permission to use signature strikes, U.S. officials said.

Excerpts, Greg Miller,CIA seeks new authority to expand Yemen drone campaign, Wasthington Post, April 18

See also

Who is the Boss? the CIA or JSOC

The Drone War in Yemen

The CIA Drone Program as a Violation of Human Rights

Regulating Satellite Technology Exports; the military and the industry

Satellite export controls should be relaxed by Congress so that U.S. companies can better compete globally for sales of communications and remote-sensing equipment, a report by the Pentagon and State Department found (pdf).  “Limited national security benefits” are provided by a 1998 law (Section 1248 of the National Defense Authorization Act of Fiscal Year 2010 (Public Law 111-84)that applies more stringent controls on satellites than on other equipment that may have both civilian and military uses, the departments said in the report requested by Congress and released today to lawmakers.

The report is “a key step toward relieving U.S. commercial satellite system, component, and part manufacturers of unnecessary controls,” said John Ordway, an export-licensing attorney with Berliner, Corcoran & Rowe LLP in Washington.  Among companies that may benefit are Northrop Grumman Corp. (NOC), Boeing Co. (BA), Loral Space & Communications Inc. (LORL), Honeywell International Inc. (HON), L-3 Communications Holdings Inc. (LLL), Alliant Techsystems Inc. (ATK), Orbital Sciences Corp. (ORB), Moog Inc. (MOG/A) and America Pacific Corp.,….

The report specifies items that should remain on the State Department’s more restrictive munitions licensing lists and those than can be moved to the less restrictive oversight of the Commerce Department’s “Commerce Control List.”The equipment that can be shifted encompasses “hundreds of thousands of items we think U.S. industry should be able to compete” on, Gregory Schulte, deputy assistant secretary of defense for space policy, told reporters on a conference call.

The 1998 law “places the U.S. space industrial base at a distinct competitive disadvantage when bidding against companies from other advanced satellite-exporting countries that have less stringent export control practices and policies,” the report found….

The 1998 law was passed after a congressionally mandated commission headed by Representative Christopher Cox, a California Republican, concluded some U.S. companies gave China access to U.S. technology that may have aided the communist nation’s military missile programs….Industry groups such as the Aerospace Industries Association say the law has stifled U.S. exports. The report today backs that assertion, concluding, ‘‘Over the last 15 years, a substantial number of commercial satellite systems, subsystems and related technologies have become less critical to national security.’’  ‘‘At a time when the budget request for national security space is already slated for a 22 percent reduction, Congress needs to act to ensure the U.S. space industrial base remains viable,’’ AIA President and Chief Executive Officer Marion C. Blakey said.  ‘‘These companies can only sustain our technological edge if they aren’t regulated out of legitimate commercial markets,’’ she said in an e-mailed statement. U.S. manufacturers lost $21 billion in satellite revenue from 1999 to 2009, costing about 9,000 jobs because of the controls, according to her group.

The report emphasizes that the State and Defense departments aren’t advocating a wholesale abandonment of the 1998 law, saying the U.S. ‘‘should maintain strict controls on transfers of ‘‘non-critical’’ items ‘‘that are likely to be used against the U.S. national interest.’’  China’s continuing efforts to acquire U.S. military and dual-use technologies require vigilance, according to the report. That nation’s civilian and military space industry ‘‘are fused together such that reasonable regulators must consider the high likelihood that space-related items and technology will be diverted from a civil use and applied to military programs.”  China recently attempted to acquire a “fully functional, European imaging satellite constellation” that was blocked because it contained U.S. technology, the report found.

Excerpts, Tony Capaccio, Satellite Export Controls Should Be Eased, U.S Says, Bloomberg, Apr 18, 2012