Posts from April, 2006

Bipartisan Executive Branch Reform Bill Advances in House

An ambitious bill (pdf) to promote an entire menu of “good government” reforms in the executive branch was endorsed on a bipartisan basis in the House Government Reform Committee today and reported to the full House.

The bill would notably limit the use of “pseudo-classification” markings such as “sensitive but unclassified” and “for official use only” unless they are authorized by statute or regulation. Such markings have been increasingly used by government agencies to restrict public access to unclassified information.

The “Executive Branch Reform Act of 2006,” HR 5112, was introduced by Committee Chairman Tom Davis (R-VA) and Ranking Member Henry Waxman (D-CA), and unanimously supported by the Committee’s members.

Among its various provisions the bill would: end secret meetings between lobbyists and most executive branch officials; enhance protections for national security whistleblowers; and ban covertly sponsored government propaganda.

DoD Says Threat Database Included Improper Info

Of the 13,000 entries in the Pentagon’s TALON database of potential threats to the Department of Defense facilities and personnel, some two percent did not involve threats and should not have been retained, Pentagon officials acknowledged yesterday.

The TALON system “should be used only to report information regarding international terrorist activity,” said Deputy Defense Secretary Gordon England in a March 30 memo (pdf).

See “Pentagon Threat Database Kept Reports It Shouldn’t Have” by Peter Spiegel, Los Angeles Times, April 6.

The fact that the TALON database included information on American citizens engaged in peaceful protest activities was first disclosed several months ago by NBC News and researcher Bill Arkin.

The DoD experience provides an empirical basis to question the propriety of intelligence collection under the President’s warrantless surveillance program. But investigations of that program have been blocked in Congress.

Federal Secrecy After September 11

The implications of increasing government secrecy are examined in a special issue of “I/S: A Journal of Law and Policy for the Information Society.”

A series of articles, mainly academic in tenor, address both the “theory” and the practice of secrecy from various perspectives and on topics such as Biosecurity and Secrecy Policy, for example.

The I/S Journal is published by Ohio State University and Carnegie Mellon. The special issue on secrecy was sponsored by The Century Foundation and The John S. and James L. Knight Foundation (which also supports Secrecy News).

See “Federal Secrecy After September 11 and the Future of the Information Society”.

Bush Authorized Disclosure of NIE to NY Times’ Miller

President Bush specifically authorized Vice Presidential aide Scooter Libby to disclose information from a classified National Intelligence Estimate (NIE) to then-New York Times reporter Judith Miller in July 2003, effectively declassifying the information, according to a government filing (pdf) in the Libby prosecution yesterday.

“Defendant’s [i.e. Libby's] participation in a critical conversation with Judith Miller on July 8 [2003] occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE,” the government filing stated (at pp. 19-20).

“Defendant [Libby] testified that the circumstances of his conversation with reporter Miller — getting approval from the President through the Vice President to discuss material that would be classified but for that approval — were unique in his recollection.”

The new filing in the Libby case was first reported today by Josh Gerstein in the New York Sun.

Whatever its significance for the Libby case, the latest filing helps to resolve a lingering question that arose last February regarding the Vice President’s role in authorizing the disclosure of classified information. It appears that the Vice President did not direct disclosure on his own authority but on that of the President.

“Defendant [Libby] testified that the Vice President later advised him that the President had authorized defendant to disclose the relevant portions of the NIE. Defendant testified that he also spoke to David Addington, then Counsel to the Vice President, whom defendant considered to be an expert in national security law, and Mr. Addington opined that Presidential authorization to publicly disclose a document amounted to a declassification of the document,” the government filing said (p. 23).

See “Government’s Response to Defendant’s Third Motion to Compel Discovery,” April 5, 2006.

Govt Defends Constitutionality of Charges in AIPAC Case

Government attorneys presented a robust justification of their decision to prosecute two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information in a supplemental brief (pdf) filed in the case last week.

“In the final analysis, this case is not about free speech, foreign policy lobbying, or petitioning the government,” the Government brief stated.

“This case is about the willful conduct of two defendants; two defendants who conspired to obtain national defense information, knew they had in fact obtained national defense information, knew that communicating that information to foreign agents and members of the press was illegal, and yet chose to do so anyway. The First Amendment offers no sanctuary for their criminal conduct,” the brief declared.

At a March 24 hearing, government attorneys had seemed tongue-tied and barely responsive to the probing questions of Judge T.S. Ellis III. Their March 31 brief, in contrast, is tightly argued.

Prosecutors even identified, at long last, what they said was a precedent for this unusual case. In a 1941 ruling in Gorin v. United States, the Supreme Court upheld the constitutionality of the espionage statutes in a case that, like the present one, involved “oral disclosures of national defense information to a person who was not a government employee.”

Attorneys for the defense also filed their own brief on First Amendment-related issues on March 31, but it was filed under seal and is not publicly available.

The defense had previously argued that it would be unconstitutional to criminalize oral communications involving national defense information because — unlike documents that are marked classified — oral conversations do not provide the listener any way to know which information is restricted from disclosure. Prosecutors disputed that argument.

“If oral communications of national defense information to non-government employees were to render the espionage statutes unconstitutional, this country would face a new era in which unconstrained espionage would flourish. Foreign agents and other individuals intent on obtaining the nation’s most secret information would merely need to engage in verbal discussions with their sources in order to thwart law enforcement. It is obvious that in passing the espionage statutes, Congress never intended such an absurd result.”

The Government also disputed the defense claim that the espionage statutes are impermissibly vague, and said that there are “extremely rigorous evidentiary hurdles” that protect against prosecutorial abuse.

“The willful intent requirement is a particularly strong guarantee against the unconstitutional application of Section 793 [of the Espionage Act]… By requiring the government to prove that the defendants knew their conduct was illegal, Section 793 insures that an ‘entrapped innocent’ will not fall within the statute’s confines. Section 793 is not unconstitutionally vague.”

A copy of the Government’s brief was obtained by Secrecy News.

See “Government’s Supplemental Response to Defendants’ Motion to Dismiss the Superseding Indictment,” filed March 31.

The Government’s newfound clarity about its argument hardly mitigates the First Amendment concerns raised by the case.

To the contrary, the prosecution’s theory implies that once a reporter becomes aware that the subject of a story is “national defense information,” he or she is legally obliged to desist from gathering any more information about it. To do otherwise could constitute evidence of “willful intent” to violate the Espionage Act.

As then-U.S. Attorney (now Deputy Attorney General) Paul McNulty put it last year, “Those not authorized to receive classified information must resist the temptation to acquire it, no matter what their motivation may be.”

But according to case law, “national defense information” means defense-related information that the Government has taken steps to withhold from official disclosure, even if it is not classified.

So the press and the public are free to investigate anything defense-related unless the Government has decided it should be withheld. This might work very well. In some other country.

A Legal Analysis of the Reauthorized Patriot Act (CRS)

On March 9, the President signed into law the USA Patriot Improvement and Reauthorization Act, which made permanent 14 of the 16 sections of the Patriot Act that were set to expire.

A new report from the Congressional Research Service provides a detailed, 74 page analysis (pdf) of the Act, including the various modifications made in the reauthorization process.

See “USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis,” March 24, 2006.

Transnational Organized Crime (CRS)

The threat posed by organized crime networks to national security and international stability, and U.S. policy responses to the threat, are examined by the Congressional Research Service in a new report (pdf) obtained by Secrecy News.

“Starting in the 1990s with the end of the Cold War and the advent of globalization, many criminal organizations ramped up their operations and expanded them worldwide.”

“Crime networks have exploited expanding trade and financial markets, while benefitting from rapidly advancing technology, broadened international travel, and improved global communications.”

“Mainly due to its clandestine nature, international crime is hard to measure. By the most conservative estimates, criminal proceeds comprise between two and five percent of global gross domestic product (GDP).”

See “Transnational Organized Crime: Principal Threats and U.S. Responses,” March 20, 2006.

U.S. Assistance to Iraq, Post-War Germany, Japan Compared (CRS)

The total amount of U.S. aid to Iraq since 2003 is already comparable to post-World War II U.S. assistance to Germany and nearly double that provided to Japan, according to a new Congressional Research Service analysis (pdf).

“U.S. assistance to Germany totaled some $4.3 billion ($29.6 billion in 2005 dollars) for the years of direct military government (May 1945-May 1949) and the overlapping Marshall Plan years (1948/1949-1952).”

“Total U.S. assistance to Japan for the years of the occupation, from 1946-1952 was roughly $2.2 billion ($15.2 billion in 2005 dollars), of which almost $1.7 billion was grants and $504 million was loans.”

By comparison, “U.S. assistance to Iraq appropriated from FY2003 to FY2006 totaled some $28.9 billion.”

The CRS report is careful to note the various distinctions between the U.S. occupation of Iraq and the occupations of Germany and Japan.

For one thing, “Unlike the cases of Germany and Japan, there was no massive humanitarian crisis requiring aid in Iraq.”

On the other hand, “Iraq also faces an insurgency that deliberately sabotages the economy and reconstruction efforts, whereas there were no resistance movements in either Germany or Japan.”

CRS does not permit direct public access to its products. A copy of the new report was obtained by Secrecy News.

See “U.S. Occupation Assistance: Iraq, Germany and Japan Compared,” March 23, 2006.

AIPAC Case Draws Growing Attention

The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is attracting growing public attention and concern as the anomalous character of the case becomes increasingly clear.

It bears repeating that the two defendants, Steven Rosen and Keith Weissman, are not accused of being agents of Israel or any other foreign power. The government has stipulated that they are not. Although they are charged under “the Espionage Act,” this is not an espionage case.

What makes the whole affair more peculiar still is that the defendants did not even request the disclosure of the information they are accused of mishandling.

“Nowhere is it alleged that Dr. Rosen or Mr. Weissman stole, paid for or even solicited the information that they allegedly received,” the defense noted in a January 19 motion to dismiss.

A theory of the law that would penalize such informal transactions between citizens and government officials is obviously susceptible to extreme abuse.

See “First Amendment Issues Raised About Espionage Act” by Walter Pincus, Washington Post, March 31.

See also “Judge Calls Speech Rights Central to Espionage Case” by Richard B. Schmitt, Los Angeles Times, April 2.

Although Judge T.S. Ellis III questioned the government sharply at a March 24 hearing, there is no reason to deduce that he will dismiss the case. Such questioning typically serves to clarify the basis for prosecution and is, as often as not, a prelude to a ruling in favor of the government.

The jury trial in the case that was originally set for April 25 has been rescheduled for May 23, according to a notice in the case docket.

Security Clearances Proposed for Some House Members

Members of the House of Representatives who serve on the Intelligence Committee or the Defense Appropriations Subcommittee should be required to obtain security clearances as a condition of the service, said Rep. Steve Buyer (R-IN), who introduced legislation to that end last week.

“These two Committees have access to the most closely guarded secrets our nation possesses,” Rep. Buyer said in March 30 testimony before the House Rules Committee.

“These Committees are positions of the highest level of trust. I do not believe that asking Members to obtain a clearance in exchange for the privilege of serving on these Committees is too much to ask to show the American people that we take this trust seriously,” he said.

He cited the case of Rep. Randy “Duke” Cunningham (R-CA), a member of both committees who was recently convicted of accepting bribes and other offenses, as a justification for the move.

Under Rep. Buyer’s surprising proposal, merely getting elected to Congress would become subordinate to the vagaries of the security clearance process. And since Congress does not have its own security vetting function, the Buyer proposal would effectively transfer to the executive branch the power to approve or deny membership on the intelligence or defense appropriations committees.

See “Buyer Pushes Higher Standards for Members,” news release, March 30.