The Complex

Spy Court Judge: These Aren’t the Reforms You're Looking For

As President Obama is mulling a series of changes to how the National Security Agency keeps tabs on the world's communications, the former top judge of the secret court that has approved much of that surveillance made an unusual public appeal Tuesday: keep the process just how it is.

John Bates, the former presiding judge of the Foreign Intelligence Surveillance Court, warned against a proposal to include in the court's proceedings an outside privacy and civil liberties advocate, who might take positions counter to the government when it seeks permission to collect huge swaths of Internet traffic, email addresses, and phone communications. Currently, only government lawyers appear before the court.

An outside attorney "would substantially hamper the work" of the court, as well as an appeals panel that also meets in secret, if that person were allowed to weigh in on "run-of-the-mill" matters, Bates wrote. That was a direct shot at a proposal by a presidentially appointed panel to include such an advocate. President Obama has taken the panel's recommendations as a guidepost for surveillance changes he will announce on Friday.

Bates' critique, which was released publicly on Tuesday by Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, was a rare example of a sitting judge weighing in on controversial policy issues that the administration and Congress are still considering. Lawmakers have also proposed adding an outside lawyer to join the court's proceedings when judges are asked to make novel interpretations of law that affect how the government is allowed to monitor Americans.

"The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast majority" of legal issues before the court, which involve case-specific facts and typically don't implicate the privacy of anyone other than the subject of surveillance, Bates said. The judge said that if the court were allowed to seek outside counsel on its own, the process would work smoother. But if a standing attorney were allowed to weigh in at will on the court's proceedings, it would be too disruptive. Bates also questioned how valuable the lawyer's contributions would be since he or she would be unable to consult with the target of surveillance and would have no ability to conduct an investigation of the facts of the case.

The judge's comments amount to a broadside of the review panel's recommendations and arrives at a time when the White House appears uncertain what modifications it will make to NSA surveillance. A senior U.S. intelligence official told Foreign Policy that Obama has not yet communicated his decision to agency leaders. He is expected to make some modifications to the most controversial of NSA's programs, including the collection and storage of Americans phone records and monitoring of foreign leaders' communications.

Bates also seemed to suggest that, despite the president and many members of Congress' claims to the contrary, the surveillance courts don't actually oversee NSA surveillance in the context of checks and balances.

"Care should be taken not to place the Courts in an ‘oversight' role that exceeds their constitutional responsibility to decide cases and controversies," Bates wrote, charting out a narrower role for the court than have many other government officials. In justifying collection of Americans' phone records and the use of blanket authorizations to vacuum up large amounts of communications data, administration officials and lawmakers have stressed that the court's approval and oversight of NSA's operations amounts to a check by the judicial branch.

Bates currently serves as the Director of the Administrative Office of the United States Courts. He acts as a liaison between Congress and the judicial branch on particular issues that affect the surveillance courts.

Separately Tuesday, the Senate Judiciary Committee heard testimony from the five members of the panel that reviewed NSA surveillance. The panel made 43 recommendations for the president's consideration. But nearly the entire hearing focused on the NSA's collection of Americans' phone records and avoided other controversial agency programs, such as its efforts to undermine encryption standards.

The panel members said they unanimously agreed that the government should not hold onto those records, and that they should be stored either with phone companies or a third party. Lawmakers and privacy experts who met last week with Obama and his chief counsel have said that the president is likely to make some modifications to that program. But it's not a foregone conclusion that he will instruct the data be stored somewhere other than NSA, they said.

Paul J. Richards / AFP

National Security

Did Iran's Spies Try to Steal U.S. Stealth Plane's Secrets?

The apparent downfall of Mozaffar Khazaee began at a freight company in Long Beach, Calif. It was there in November that customs officers cracked open two shipping crates that the 59-year-old allegedly was sending to Iran. Inside, authorities say, was a massive trove of documents for the United States' next-generation fighter plane, the $392 billion F-35 Joint Strike Fighter. Now Khazaee, a naturalized U.S. citizen from Iran, faces a slew of criminal charges, up to 10 years in prison, and a $250,000 fine.

Khazaee, a former defense contractor who worked on the high-tech stealth plane, was arrested Jan. 9 at Newark Liberty International Airport in New Jersey, where he was in between legs on an international flight. He already had flown from his home in Indianapolis to Newark, and was waiting to catch a connecting flight to Frankfurt, Germany. His final destination? Tehran, authorities say.

Already, the case has raised questions about whether more criminal charges may be filed against Khazaee or people with whom he associated. A criminal complaint filed Jan. 8 in U.S. District Court in Connecticut, where Khazaee lived until recently, charges him with transporting, transmitting and transferring in interstate or foreign commerce goods obtained by theft, conversion or fraud. But the case remains under investigation, with personnel from the FBI, Department of Homeland Security, the U.S. Customs and Border Protection Service, the Air Force Office of Special Investigations, and the Defense Criminal Investigative Service all involved.

According to court documents, investigators are working to determine whether Khazaee broke any laws laid out in the U.S. Arms Export Control Act, the Iranian Transactions Sanctions Regulations, and the International Emergency Economic Powers Act, the latter of which allows the United States to regulate commerce after declaring a national emergency in response to any threat to the nation that has a foreign source. Also of note, while Khazaee does not currently face any espionage charges, the case will be prosecuted by a group that includes an attorney with the Justice Department's counterespionage section, authorities say.

The case raises complicated diplomatic issues for the United States at a time when the State Department has cultivated a closer relationship with Tehran than it has in years. On Sunday, Iran, the United States and five other world powers announced the specifics of a six-month plan to reduce Tehran's nuclear program beginning Jan. 20, in exchange for the United States easing crushing economic sanctions that have been in place for years.

A criminal complaint filed in U.S. District Court in Bridgeport, Conn., outlines how federal authorities nabbed Khazaee. It says customs officers inspected a shipment Khazaee had sent from Connecticut to a freight company in Long Beach to be sent to Hamadan, Iran, on the NYK Libra, a Panama-flagged shipping vessel. The documentation for the shipment said household goods were inside the crates, but investigators found "sensitive technical manuals, specification sheets, and other proprietary material relating to the United States Air Force's F35 Joint Strike Fighter ('JSF') program and military jet engines." The freight company was told Khazaee's shipment was being sent to his brother-in-law, to be held until Khazaee returned to Iran, the criminal complaint says.

On Dec. 4 and 5, agents with the Department of Homeland Security examined Khazaee's shipping crates. They contained 44 boxes with thousands of pages of documents on the F-35, according to the criminal complaint, signed by Breanne Chavez, a special agent with Homeland Security. Many of the pages indicated they were the possession of three different defense contractors -- not identified in the court documents -- who have worked on the plane.

Investigators learned later in December that Khazaee had worked previously for "Company A," one of the three contractors whose documents were in his crates, authorities say. He had left the company on Aug. 19 as the company laid off employees. The organization is not identified in court documents, but it is aviation giant Pratt & Whitney, the Connecticut-based company said in a statement to Foreign Policy. Pratt makes engines for the fifth-generation fighter, which is expected to become a centerpiece of U.S. air power in the future.

Pratt & Whitney personnel told federal agents with Homeland Security and the FBI on Dec. 26 that during the Khazaee's time with the company, his team had conducted strength and durability tests for components of all of Pratt's engines, including the F119 engine it built solely for use in another Air Force fighter, the F-22 Raptor. Upon leaving the company, Khazaee signed paperwork acknowledging his responsibility to surrender all Pratt-related material, the criminal complaint says.

In December, investigators also interviewed personnel from the other two unidentified companies referenced in the criminal complaint, it says. In both cases, employees said Khazaee had signed agreements stating he would not keep any company documents. Neither corporation is named. A spokesman for Lockheed Martin, the lead company on the F-35, told Foreign Policy that officials there are aware of the investigation and cooperating with authorities, but declined to say whether they were one of the companies cited in the criminal complaint.

As Defense News noted Monday, another company with involvement in the F-35 is Rolls-Royce, which has corporate offices in Indianapolis, where Khazaee last lived before his arrest. A Rolls-Royce official told Foreign Policy that the company was cooperating with authorities, but declined to comment further, citing the ongoing investigation.

The incident is the latest for the F-35 program that has both national security and diplomatic implications. Reuters reported earlier this month that the Pentagon repeatedly waived laws banning the use of Chinese parts in the aircraft to keep the program on schedule in 2012 and 2013. Congress' investigative agency, the Government Accountability Office, is currently reviewing what happened, Reuters reported. Computer hackers also have targeted F-35 program information repeatedly, dating at least as far back as 2009.

The Pentagon is aware of the Khazaee case, said Joe DellaVedova, a spokesman for the F-35 program.

"The F-35 Joint Program Office has been alerted to the investigation, and will cooperate fully with legal authorities pursuing the case," he said. "No additional comment will be made while the investigation is ongoing."

Lockheed Martin photo