Posts from March, 2006

US News: Secrecy Under Scrutiny

The latest issue of U.S. News and World Report (March 20) features an interview with me on the subject of government secrecy.

It is part of the observance of Sunshine Week, which is a nationwide effort to focus public attention on the virtues of open government.

My not-so-smiling face can also be seen in light and shadow cast by window blinds (“It’s not cliche,” the photographer explained, “it’s classic.”).

See “Secrecy Under Scrutiny” by David E. Kaplan, U.S. News and World Report, March 20, 2006.

A sidebar takes a look at Freedom of Information Act policy. See “Finding out what Uncle Sam has on you” also by David E. Kaplan.

For more on Sunshine Week go to www.sunshineweek.org.

More on the “Incomprehensible” Espionage Act of 1917

The Espionage Act is “in many respects incomprehensible,” wrote Harold Edgar and Benno C. Schmidt, Jr. in a definitive law review article (large pdf) three decades ago which explored the potential use of the Act to prosecute leaks to the media.

The espionage statutes are “so sweeping as to be absurd,” they argued (previously noted in Secrecy News, 10/19/05).

“If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality.”

Now a scan of that 1973 paper is available online.

See “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (a large 6.3 MB PDF file).

Though it remains the best account of the legislative history of the Espionage Act, the Edgar/Schmidt article is not the last or the latest word on the meaning of the Act. In particular, the prosecution of Samuel L. Morison in 1985 for providing classified satellite photos to Jane’s Defence Weekly established that the Espionage Act could be used to successfully prosecute leakers.

An article in the current issue of Commentary Magazine now calls for the prosecution of the New York Times for disclosing the NSA warrantless surveillance activity.

Though many experts consider the NSA program to be illegal because it violates the clear language of the Foreign Intelligence Surveillance Act, Commentary author Gabriel Schoenfeld argues that disclosure of the program is the crime that should be investigated and prosecuted.

That perspective is examined in “Bill Keller in Chains: Commentary’s case for prosecuting the Times under the Espionage Act” by Jack Shafer, Slate, March 9.

CIA on the President’s Daily Brief

(Updated Below)

Some new details on the preparation of the President’s Daily Brief (PDB) and its presentation to the President and a small number of other officials are discussed in a Central Intelligence Agency declaration (pdf) filed last week in the prosecution of former Vice Presidential aide I. Lewis “Scooter” Libby.

“Six mornings a week, intelligence briefers meet with the President and selected senior Executive officials to provide a daily intelligence briefing. Each briefer meets with one or more designated officials to present an oral briefing and a binder containing written materials for each official’s review,” wrote CIA official Marilyn A. Dorn.

She argued in her March 2 declaration that responding to Mr. Libby’s request for production of various PDBs and related material would be extremely burdensome and might also infringe on executive privilege.

A March 7 response from Mr. Libby is available here.

The CIA has agreed to process a Freedom of Information Act request from the Federation of American Scientists for redacted PDB materials that it had declassified and provided to the Office of Special Counsel.

But the Agency denied a request for fee waiver because, CIA official Scott Koch wrote on March 3, “disclosing the information you seek is not likely to contribute significantly to public understanding of the operations and activities of the United States Government.”

Update: The Court today partially granted and partially denied the Libby request for discovery of PDB-related material and other items. The government was ordered to provide the defense with “redacted versions of the documents provided to the defendant during his morning intelligence briefing that were also viewed by the Vice President” or “topic overviews of the subject matter contained in those documents.”

See the Court’s March 10 Order here (pdf), and the underlying Memorandum Opinion here (pdf).

Army Intelligence on Arab Culture

U.S. Army intelligence has produced a handbook (pdf) that is intended “to provide soldiers with a basic overview of Arab culture.”

It begins with “Where is the Arab World?” and “What is an Arab?” and proceeds onward to brief and elementary discussions of Arabic language, culture, and politics.

Viewing the Arab world in this way, Army intelligence also puts itself on display in the questions it poses and the answers it offers, but it does so with some self-awareness and with nothing more offensive than an occasional cliche.

“It is impossible to talk about groups of people without generalizing,” the document explains. “It then follows that it is hard to talk about the culture of a group without generalizing. This handbook attempts to be as accurate and specific as possible, but inevitably contains such generalizations.”

A copy of the new Handbook was obtained by Secrecy News.

See “Arab Cultural Awareness: 58 Factsheets,” DCSINT Handbook No. 2, Deputy Chief of Staff for Intelligence, US Army Training and Doctrine Command, January 2006.

The James Madison Award and Sunshine Week

Secrecy News is honored to be recognized by the American Library Association (ALA) with its James Madison Award, which is “presented annually on the anniversary of his birth (March 16) to honor those who have championed, protected, and promoted public access to government information and the public’s right to know.”

“This award is, we believe, a fitting recognition of your effective voice for transparency and against unnecessary — and often pointless — government secrecy,” wrote ALA President Michael Gorman (pdf).

“Your publication, Secrecy News, contains invaluable information and often serves as the first notice to the public of proposals to limit access to information.”

“The Project on Government Secrecy web site is a critical resource for all those concerned with access and secrecy issues. It contains a remarkable range of information on government secrecy policy and often is the only place that much of the information can be located,” Mr. Gorman generously wrote.

Presentation of the award is one of several ALA activities scheduled for Sunshine Week, which is next week, March 12-18. See this ALA news release.

Details of other Sunshine Week programs and resources can be found on the Sunshine Week web site.

CIA Sued Over Prepublication Review

A former Central Intelligence Agency employee, Thomas Waters Jr., filed a lawsuit against the Agency last week, arguing that publication of his book had been improperly blocked in the prepublication review process.

“The Central Intelligence Agency has unlawfully imposed a prior restraint upon Thomas Waters by obstructing and infringing on his right to publish his unclassified memoirs and threatening him with civil and criminal penalties,” according to the March 3 complaint (pdf) filed in DC District Court.

The case seems to reflect the tightening of controls on public disclosure of information at the CIA.

Almost all of Waters’ manuscript had been cleared for publication by the CIA in September 2004, according to the complaint (pdf). But last month, the Agency notified him that substantial portions of the book, including some material that had previously been approved, could not be published after all.

“The CIA continues to deliberately create a hostile environment for its former employees who are seeking to do nothing other than publish nonsensitive, unclassified information,” said Mark S. Zaid, Waters’ attorney. “Its actions are completely unconstitutional and designed to disable the First Amendment.”

See also “CIA Sued Over Right to Publish” by Shaun Waterman, United Press International, March 6.

Congress on Amending the Patriot Act, Captured Iraqi Documents

With final congressional reauthorization of the USA Patriot Act now imminent, new legislation was introduced in the Senate yesterday to amend the reauthorized Act.

“What this legislation does is reinstate provisions of the original Senate-passed [Patriot Act reauthorization] bill,” said Senator Arlen Specter (R-PA). Those provisions were rejected by the House Republican leadership.

The new bipartisan legislation, jointly sponsored by Senators Specter and Leahy among others, would “require a more reasonable period for delayed-notice search warrants, provide enhanced judicial review of FISA orders and national security letters, require an enhanced factual basis for a FISA order, and create national security letter sunset provisions.”

The legislation does not confront the awkward fact that the Bush Administration appears to believe it does not have to comply with the Foreign Intelligence Surveillance Act.

See the introduction of the new bill here.

Another bill, introduced by Rep. Pete Hoekstra, chair of the House Intelligence Committee, would require the Director of National Intelligence to release documents captured in Afghanistan or Iraq.

“The Director of National Intelligence shall make publicly available on an Internet website all captured documents.”

“The term ‘captured document’ means a document captured or collected in Afghanistan or Iraq, including a document collected from the Government of Iraq or from a private person and including a document in electronic form, during Operation Desert Storm, Operation Enduring Freedom, and Operation Iraqi Freedom,” the legislation states.

Origins of “The Right to Know”

“There is nothing in the Constitution about ‘the public’s right to know’,” wrote former Assistant Director of Central Intelligence Mark M. Lowenthal in his book “Intelligence: From Secrets to Policy” (CQ Press, 2000, page 143).

“The Constitution safeguards freedom of speech and of the press, but these are not the same as a right to information,” Mr. Lowenthal argued.

This is not quite correct. The Constitution may be readily understood to grant a public right to know certain types of information.

Specifically, the Constitution imposes an obligation on the government to publish two categories of information: a Journal of Congress (Article I, section 5) and a statement and account of all receipts and expenditures (Article I, section 9).

And the government’s obligation to publish this information is semantically identical (or nearly so) to a public right to know it.

The public only gained a broader legal right to access government information with the Freedom of Information Act, which was first enacted in 1966. Prior to that time, one could ask for information, but the government had no duty to respond. Since then, thanks to the FOIA, the public has had a legally enforceable right to compel disclosure of non-exempted information.

As for the phrase “the right to know,” it was apparently coined in the 1940s by Kent Cooper, who was the executive director of the Associated Press. The New York Times credited him with originating the phrase in an editorial on January 23, 1945. (As noted by James S. Pope in the Foreword to “The People’s Right to Know” by Harold L. Cross, Columbia University Press, 1953, p. xi.)

The AIPAC Case: Aiding and Abetting Leaks

The most troubling aspect of the prosecution of two former employees of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is that prosecutors have adopted an expansive new interpretation of the Espionage Act which could make criminals of many reporters, lobbyists and advocates who traffic in government information that may be classified.

But another worrisome feature of the case is that one of the AIPAC defendants is charged under a separate statute — 18 U.S.C. § 2 — with “aiding and abetting” an unauthorized disclosure of information.

(18 U.S.C. § 2 states that “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”)

The use of this “aiding and abetting” statute multiplies the impact of the government’s new theory of the Espionage Act since it means that anyone who facilitates or encourages the disclosure of proscribed information — as reporters and many others do in the course of their daily activities — is as culpable as the one who discloses classified information without authorization.

“It’s called being an ‘accessory before the fact’,” observed former CIA analyst Allen Thomson, who flagged the use of this provision in the AIPAC prosecution. He cited a law dictionary definition which explained that “an accessory before the fact is one whose counsel or instigation leads another to commit a crime.”

Punishing the solicitation or acquisition of restricted information could obviously be an effective way to discourage press attention to matters that the government wishes to conceal.

On the other hand, Mr. Thomson conjectured, the government’s “use of 18 USC § 2 against [AIPAC defendant Steven J.] Rosen … might provide reporters with a Fifth Amendment basis for refusing to talk to grand juries” since they could run the risk of self-incrimination. Any such Fifth Amendment claim could be defeated by a grant of immunity, however.

See, relatedly, “Pro-Israel Lobbying Group Roiled by Prosecution of Two Ex-Officials” by Scott Shane and David Johnston, New York Times, March 5.

More on NSA Warrantless Surveillance

“In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I’ve seen,” said Prof. Harold Hongju Koh, dean of the Yale Law School, at a Senate Judiciary Committee hearing on February 28.

Others disagreed. “I believe that the inherent authority of the president under Article II, under these circumstances, permits the types of intercepts that are being undertaken,” said former DCI R. James Woolsey.

The opening statements from the February 28 hearing on “Wartime Executive Power and the NSA’s Surveillance Authority” may be found here.

The view that the NSA surveillance activity is illegal was elaborated in a legal memorandum that was presented to the Foreign Intelligence Surveillance Court last week by the Center for National Security Studies and the Constitution Project.

Also last week, Sen. Robert Byrd (D-WV) introduced legislation to establish “to investigate the instances of warrantless wiretapping and spying on U.S. citizens by the National Security Agency and other departments of Government.”