Posts from January, 2006

Classification Laws Apply to Everyone, Judge Says

In a startling pronouncement that can only heighten tensions between the press and the government, a federal judge said last week that the laws governing classified information apply to anyone who is in receipt of such information, including reporters who are the recipients of “leaks.”

“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” said Judge T.S. Ellis III. “That applies to academics, lawyers, journalists, professors, whatever.”

Judge Ellis’s statement came at the conclusion of a sentencing hearing for Lawrence Franklin, the former Pentagon analyst who was charged along with two former officials of the American Israel Public Affairs Committee (AIPAC) with felony violations of the Espionage Act.

The extraordinary claim that mere possession of classified information triggers legal obligations leads to absurd conclusions, particularly since anyone who reads the daily newspaper comes into “unauthorized possession of classified information.”

More importantly, it serves to discourage investigative reporting of illegal government activities that happen to be classified.

The provisions of the Espionage Act to which Judge Ellis was referring are “in many respects incomprehensible,” wrote Harold Edgar and Benno C. Schmidt, Jr. in their definitive1973 study “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (Secrecy News, 10/19/05).

Judge Ellis’s statement was first reported in “Sentence in Franklin case sends chill through free-speech community” by Ron Kampeas, Jewish Telegraphic Agency, January 24.

Lawrence A. Franklin was sentenced January 20 on three felony counts: conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. See this January 20 news release from the Department of Justice.

The prosecution of the two former AIPAC officials who were charged with Franklin, Steve Rosen and Keith Weissman, raises press freedom issues with even greater urgency since neither of them, unlike Franklin, held a security clearance.

Their attorneys last week filed motions to dismiss the case, but those motions are sealed pending a security review.

White House Rebuffed 2002 Effort to Relax FISA Standard

The Bush Administration rejected a Congressional initiative in 2002 that would have lowered the legal threshold for conducting surveillance of non-US persons under the Foreign Intelligence Surveillance Act from “probable cause” that the target is a terrorist or agent of a foreign power to “reasonable suspicion.”

Administration officials said at the time that the legislative proposal was unnecessary and possibly unconstitutional.

Yet in a speech this week on the NSA domestic surveillance program, Deputy Director of National Intelligence Gen. Michael V. Hayden indicated that the executive branch had unilaterally adopted a similar “reasonable suspicion” standard.

Instead of FISA’s more stringent “probable cause” requirement, the presidentially-directed NSA surveillance operation applied to international calls that “we have a reasonable basis to believe involve al Qaeda or one of its affiliates,” Gen. Hayden said on January 23.

The unexplained contradiction between the Administration’s public rejection of the “reasonable suspicion” standard for FISA, and its secret adoption of that same standard was noted yesterday by attorney and blogger Glenn Greenwald.

See “The Administration’s New FISA Defense is Factually False,” January 24.

The 2002 legislative proposed, S. 2659 introduced by Rep. Michael DeWine (R-OH), “raises both significant legal and practical issues [and] the Administration at this time is not prepared to support it,” said James A. Baker of the Justice Department.

Among other concerns, Mr. Baker said, “If we err in our analysis and courts were ultimately to find a ‘reasonable suspicion’ standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.”

See Mr. Baker’s prepared statement from the July 31, 2002 hearing of the Senate Intelligence Committee.

The transcript and other prepared statements from that Senate Intelligence Committee hearing on “Proposals to Amend the Foreign Intelligence Surveillance Act” are available here.

Kinetic Energy Kill for Ballistic Missile Defense (CRS)

A new report from the Congressional Research Service presents a skeptical overview of the development of kinetic energy interceptors — anti-missile missiles — for defense against incoming ballistic missiles.

“The data on the U.S. flight test effort to develop a national missile defense (NMD) system are mixed and ambiguous. There is no recognizable pattern to explain this record nor is there conclusive evidence of a learning curve over more than two decades of developmental testing.”

A copy of the new CRS report was obtained by Secrecy News.

See “Kinetic Energy Kill for Ballistic Missile Defense: A Status Overview,” January 18, 2006.

Patriot Act Reauthorization: A Legal Analysis (CRS)

The existing controversy over reauthorization of the USA Patriot Act — portions of which will “sunset” if they are not renewed — acquired a new dimension with the disclosure last month of an NSA domestic surveillance operation.

Some now argue that the Patriot Act should not be reauthorized before the Bush Administration’s claims of inherent presidential authority to conduct domestic intelligence surveillance outside of the framework of law (FISA) are confronted and clarified.

“The extensive new powers requested by the executive branch in its proposal to extend and enlarge the Patriot Act should under no circumstances be granted unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed,” said former Vice President Al Gore in a January 16, 2006 speech.

Much of the Patriot Act is unobjectionable to anyone, and some of it is positively sensible. But it also has controversial provisions on “national security letters” as well as several totally extraneous provisions inserted by House Republicans.

A detailed assessment of the entire piece of legislation was prepared by the Congressional Research Service. A copy was obtained by Secrecy News.

See “USA PATRIOT Improvement and Reauthorization Act of 2005 (H.R. 3199): A Legal Analysis of the Conference Bill,” January 17, 2006.

Congressional Oversight in Theory and in Practice

The rudiments of Congressional oversight — its legal basis, its functions, and the diverse forms it takes — are concisely described in a newly updated report from the Congressional Research Service.

“Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation…. Congress’s oversight authority derives from its ‘implied’ powers in the Constitution, public laws, and House and Senate rules. It is an integral part of the American system of checks and balances.”

See “Congressional Oversight,” updated January 3, 2006.

Integral though it may be, there is a widespread perception that congressional oversight has atrophied in recent years.

“Everyone recognizes that the failure of congressional oversight was one of the reasons why we have some of the problems in the intelligence community today,” said Sen. John McCain on NBC Meet the Press on November 21, 2004.

“We really don’t have, still don’t have, meaningful congressional oversight,” McCain said.

Last week, Rep. Henry Waxman released two reports that compare Congress’ relentless probing of the Clinton Administration with the anemic oversight of the present Administration.

“On issue after issue, the Congress has failed to conduct meaningful investigations of significant allegations of wrongdoing by the Bush Administration,” Rep Waxman wrote. “This approach stands in stark contrast to the breadth and intrusiveness of congressional investigations of the Clinton Administration.”

See “Congress’ Abdication of Oversight,” January 17, 2006.

NSA: Redacting With Confidence

The National Security Agency has issued new guidance to assist officials in redacting (censoring) documents in Microsoft Word format and producing unclassified Adobe Portable Document (PDF) files without inadvertently disclosing sensitive information.

“MS Word is used throughout the DoD and the Intelligence Community (IC) for preparing documents, reports, notes, and other formal and informal materials. PDF is often used as the format for downgraded or sanitized documents.”

“There are a number of pitfalls for the person attempting to sanitize a Word document for release.”

For example, “As numerous people have learned to their chagrin, merely converting an MS Word document to PDF does not remove all [sensitive] metadata automatically.”

“This paper describes the issue, and gives a step-by-step description of how to do it with confidence that inappropriate material will not be released.”

See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF,” National Security Agency, December 13, 2005:

The Legal Significance of Presidential Signing Statements

When he signed the 2006 Defense Appropriations Act, which included a prohibition against torture of detainees in U.S. custody, President Bush issued a signing statement implying that he could disregard the new prohibition in his capacity as commander in chief.

“The executive branch shall construe [the statute], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief,” he wrote in the December 30, 2005 statement on H.R. 2863.

The use of Presidential signing statements to create a kind of quasi-legislative history intended to influence future judicial rulings is a relatively new and increasingly controversial phenomenon.

“So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon — if indeed it existed at all — before the Reagan and Bush Presidencies,” according to a 1993 memorandum from the Department of Justice Office of Legal Counsel.

“The Reagan and Bush Administrations made frequent use of Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the courts could rely in construing such language.”

Among other problems with this practice, “it is arguable that ‘by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power’.”

See “The Legal Significance of Presidential Signing Statements,” prepared by Assistant Attorney General Walter Dellinger, November 3, 1993.

Justice Dept Issues White Paper on NSA Surveillance

The Department of Justice renewed its legal defense of warrantless domestic intelligence surveillance by the National Security Agency in a 42 page white paper transmitted to Congress yesterday.

The white paper essentially reiterates at greater length the previous defenses articulated by the Bush Administration: (1) the surveillance action was authorized by Congress when it passed the 2001 resolution on use of military force against al Qaeda; and (2) the President has inherent authority to conduct such surveillance in any case. Both assertions are widely disputed.

“The President — in light of the broad authority to use military force in response to the attacks of September 11th and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF [authorization for use of military force] — has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment,” the document concludes.

See “Legal Authorities Supporting the Activities of the National Security Agency Described by the President,” Department of Justice White Paper, January 19, 2006.