Posts from May, 2006

State Secrets Privilege Shuts Courthouse Doors

The state secrets privilege has been invoked by the Bush Administration with greater frequency than ever before in American history in a wide range of lawsuits that the government says would threaten national security if allowed to proceed.

In virtually every case, the use of the privilege leads to dismissal of the lawsuit and forecloses the opportunity for an injured party to seek judicial relief.

Most recently, a lawsuit brought by Khaled El-Masri, a German citizen who alleged that he was kidnapped by the CIA and tortured over a five month period, was dismissed (pdf) after the CIA invoked the “state secrets” privilege.

The dismissal was not based on a finding that the allegations against the CIA were false.

“It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint,” wrote Judge T.S. Ellis, III in a May 12 order.

In fact, “It is worth noting that … if El-Masri’s allegations are true or essentially true, then all fair-minded people… must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy,” he wrote in the order dismissing the case.

“Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch,” he suggested.

But in this case the executive branch is the alleged perpetrator of the offense, and the legislative branch has no procedures for adjudicating allegations such as El-Masri’s, even if it had an interest in doing so. That’s what courts are for.

Terrorists can kill people and destroy property. But they cannot undermine the rule of law, or deny injured parties access to the courts. Only the U.S. government can do that.

The state secrets privilege has been invoked lately in a remarkable diversity of lawsuits. See this selection of case files from recent state secrets cases.

Tom Blanton of the National Security Archive reflected on the growing use of the state secrets privilege and how it relates to the larger climate of secrecy in “The lie behind the secrets,” Los Angeles Times, May 21.

Recently introduced legislation would “provide protection from frivolous government claims of state secrets,” the Project on Government Oversight noted.

Wired News today published documents (pdf) pertaining to the alleged role of AT&T in NSA warrantless surveillance related to another lawsuit in which the state secrets privilege has been invoked.

Groom Lake-Related Environmental Data Found Online

When workers at the secret Groom Lake (“Area 51″) aircraft test facility in Nevada filed a lawsuit in the early 1990s alleging that they had been injured by fumes from open-pit burning of chemical waste associated with stealth aircraft development, the government blocked the lawsuit by insisting that all information regarding the chemical waste was classified.

So it came as a surprise to researcher Stephen I. Schwartz when he discovered that some of this information had been published online by the Air Force in a document cleared for public release.

Specifically, a safety manual (pdf) intended for emergency responders identifies the “hazardous byproducts of burning wreckage” of an F-117A stealth fighter.

“It’s a textbook case of how the government, in this case the Air Force, wields classification rules unevenly and withholds information illegally when its disclosure would prove embarrassing or costly,” said Stephen Schwartz, the former publisher of the Bulletin of the Atomic Scientists.

A copy of the document he found, entitled “F-117A Safety Supplement: Aerospace Emergency Rescue and Mishap Response Information,” U.S. Air Force Technical Manual, 19 May 2005 (see esp. pages 9-10) is available on the Federation of American Scientists web site (2.3 MB PDF).

The story was reported in “Warnings for emergency responders kept from Area 51 workers” by Keith Rogers, Las Vegas Review-Journal, May 21.

Attorney Jonathan Turley, who represented the Groom Lake workers, told the Review-Journal that as a result of the latest revelations he is “looking at the possibility of renewed litigation related to Area 51.”

Pentagon’s Black Budget Soars to Cold War Heights

The Department of Defense budget request for 2007 includes about $30.1 billion in classified or “black” spending, according to a new analysis by the Center for Strategic and Budgetary Assessments.

“In real (inflation-adjusted) terms the $30.1 billion FY 2007 request includes more classified acquisition funding than any other defense budget since FY 1988, near the end of the Cold War, when DoD received $19.7 billion ($29.4 billion in FY 2007 dollars) for these programs,” wrote author Steven Kosiak.

See “Classified Funding in the FY 2007 Budget Request” (pdf) from the Center for Strategic and Budgetary Assessments.

The study was reported in “Classified military spending reaches highest level since Cold War” by Drew Brown, Knight-Ridder Newspapers, May 19.

Some Other Secrecy News

Pressure to adopt “sensitive but unclassified” control markings on information that does not qualify for classification is growing, along with opposition to such controls, among some academic researchers who study terrorism-related topics. See “Scientific Openness: Should Academics Self-Censor Their Findings on Terrorism?” by Yudhijit Bhattacharjee, Science, May 19.

“The secrecy that has become such a hallmark of the Bush administration did not begin with Sept. 11, as the White House often suggests. It began in the earliest days of January 2001, as the administration was taking shape,” according to a National Public Radio account. See “From the Start, Bush White House Kept Secrets” by Don Gonyea, NPR Weekend Edition, May 21.

DNI Reports “Substantial Progress” in Intelligence Reform

In an unusually informative new report to Congress, the Director of National Intelligence (DNI) advised that he “is making substantial progress in the implementation of the [Intelligence Reform Act of 2004].

The DNI outlined the actions he has taken to integrate the U.S. intelligence bureaucracy and alluded in passing to several new initiatives he has undertaken. For example:

“For the first time, the IC [intelligence community] is reassessing all of its relationships with foreign counterparts to determine whether new relationships may be beneficial and whether there are additional activities that need to be deconflicted.”

And: “The ODNI is reviewing information disclosure policies and is working to improve training and awareness of information security procedures, implement audit technologies, and ensure that unauthorized disclosures are investigated.”

“The ODNI will soon issue a community-wide directive on unauthorized disclosures.”

“The ODNI has established a digital library of all new intelligence products produced by the community to bring together all available national intelligence on any given topic…. To ensure that analysis is based on all available sources, the ODNI is exploring ways to increase the capacity of analysts across the community to exploit the full range of classified data and openly available information relevant to national security.”

“The analytic ombudsman recently reviewed IC tradecraft and assumptions on the recent Hamas victory in the Palestinian elections, and lessons learned from that exercise are already being put into place.”

See “Report on the Progress of the Director of National Intelligence in Implementing the ‘Intelligence Reform and Terrorism Prevention Act of 2004′,” May 2006.

The Hayden Confirmation Hearing

“I do think we overclassify, and I think it’s because we got bad habits,” said Gen. Michael V. Hayden, the nominee to be the new Director of the Central Intelligence Agency.

See the full transcript of his May 18 confirmation hearing before the Senate Select Committee on Intelligence here (pdf).

In Print: Imaginary Weapons

The military subculture that pursues the development of fabulous, physically impossible weapons concepts at taxpayer expense is the subject of a new book by defense reporter Sharon Weinberger called “Imaginary Weapons.”

Weinberger introduces the hafnium bomb, a hypothetical weapon that would supposedly harness the energy released from a nuclear transition within a hafnium isomer. It is a purely speculative notion that has been largely discredited, but one that attracted nearly cultish attention — and millions of dollars — within the defense establishment.

It is akin in its eccentricity, and lack of reproducibility, to “zero point energy,” “psychic teleportation” (pdf), and other notions that Weinberger terms “fringe science.”

Fringe science, she contends, “has reached new heights under the Bush Administration. We have fewer and fewer scientific experts in the government, and an increasing unwillingness by the government to turn to outside scientific advisers.”

“The real danger in this story is not the existence of fringe science, but of fringe science in government, particularly when it receives substantial funding or guides decision-making.”

“I see this problem getting worse, not better. If the government doesn’t take steps to shore up its scientific expertise, I think we are facing a future filled with imaginary weapons.”

Her highly readable new book, filled with entertaining or disgusting anecdotes, has just been published.

See “Imaginary Weapons: A Journey Through the Pentagon’s Scientific Underworld” by Sharon Weinberger, Nation Books, June 2006.

CRS Views Government Access to Phone Records

The government’s acquisition of telephone records of tens of millions of Americans, as reported last week in USA Today, raises a host of thorny legal issues. In a new report (pdf), the Congressional Research Service performed a preliminary assessment of those issues.

“The factual information available in the public domain with respect to any such alleged program is limited and in some instances inconsistent,” the CRS authors caution, “and the application, if at all, of any possibly relevant statutory provisions to any such program is likely to be a very fact specific inquiry.”

Having said that, the CRS explains that there are several statutes that may be pertinent and that could conceivably entail civil or criminal penalties for telephone companies that provide information to the government without statutory authorization.

“This [CRS] report …summarize[s] statutory authorities regarding access by the Government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, we will also discuss statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions.”

The Congressional Research Service does not make its products directly available to the public. But a copy of the latest report was obtained by Secrecy News.

See “Government Access to Phone Calling Activity and Related Records: Legal Authorities,” May 17, 2006.

SBU and the Challenge of Information Sharing

The widespread use of “Sensitive But Unclassified” (SBU) control markings is a major impediment to information sharing inside and outside of the federal government, according to testimony (pdf) last week from Thomas E. McNamara, the program manager for the Information Sharing Environment, who reports to the Director of National Intelligence.

“More than 60 different marking types are used across the Federal Government to identify SBU, including various designations within a single department,” he observed.

And even “[when] different agencies … use the same marking to denote information that is to be handled as SBU, a chosen category of information is often defined differently from agency to agency, and agencies may impose different handling requirements. Some of these marking and handling procedures are not only inconsistent, but are contradictory.”

See his prepared testimony from a May 10 hearing of the House Homeland Security Subcommittee on Intelligence.

“There is, quite frankly, much [SBU] that has no legal basis and doesn’t deserve a legal basis,” he told the Subcommittee. “We should be getting that stuff out.”

See “Congress urged to help make more ‘sensitive’ information public” by Chris Strohm, Congress Daily, May 11.

An interagency working group completed an inventory of SBU procedures in March, and is due to develop recommendations for standardizing such procedures by next month.