Posts from June, 2006

“SEALED v. SEALED”: How Courts Confront State Secrets

The government’s increasing use of the “state secrets privilege” to resist civil litigation on national security matters has often been met by courts with uncritical, even abject deference to the executive agencies that invoke the privilege. But another, more assertive response is possible.

“The state secrets privilege is absolute,” wrote Judge Royce C. Lamberth categorically in a newly disclosed decision (pdf) from July 2004.

In that case, former DEA agent Richard Horn alleged that his phone had been illegally wiretapped by the U.S. government when he served in Myanmar (Burma) in 1993. The government asserted the state secrets privilege and moved for dismissal.

Plaintiff Horn then proposed that the provisions of the Classified Information Procedures Act (CIPA) be adapted to permit the secure adjudication of classified information in his lawsuit, as is done in certain criminal trials such as espionage cases.

But, Judge Lamberth reasoned, “If the Court adopted CIPA,… the [state secrets] privilege would not be absolute.” So he simply dismissed the case.

Horn’s lawsuit — Horn v. Huddle, D.C. District Case No. 94-1756 — is sealed. It does not appear in the public docket of the D.C. District Courthouse. Instead, it is tagged “SEALED v. SEALED” with the annotation “Case is not available to the public.”

But a redacted copy of Judge Lamberth’s July 28, 2004 order dismissing the case was obtained by Secrecy News.

A markedly different judicial response to a state secrets claim may be emerging in a current lawsuit brought by the Electronic Frontier Foundation alleging unlawful domestic surveillance.

Instead of simply granting “absolute” deference to the government whenever it asserts the state secrets privilege, the Court admitted that there are multiple interests at stake that must somehow be reconciled:

“How can the court minimize the conflict between plaintiffs’ right to litigate this case and the government’s duty to protect state secrets?” Judge Vaughan R. Walker asked the parties in a January 20 order (pdf).

“Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise,” argued constitutional scholar Louis Fisher in a new op-ed. “It would let self-serving assertions by one of the litigants usurp the judge’s authority.” See “State Your Secrets” (pdf) by Louis Fisher, Legal Times, June 26 (reprinted with permission).

A critical view of the Bush Administration’s use of the state secrets privilege was presented in “The Bush Code of Secrecy” by Mark Follman, Salon, June 23.

Last March, the Central Intelligence Agency asserted (pdf) the state secrets privilege in a somewhat mysterious case called Jane Doe v. CIA, and moved for dismissal. Last week, Mark S. Zaid, the attorney for “Jane Doe,” asked the Court not to dismiss the case.

“The privilege has been used in this administration more than any other administration,” according to University of Texas-El Paso professor William Weaver.

“Depending on how you count it, it’s been asserted … between 19 and 21 times,” he told National Public Radio on June 19.

How Did U.S. Assess Iraqi Bioweapon Production?

One of the most vivid allegations made by the U.S. government regarding Iraqi weapons of mass destruction was the claim that Iraqi had developed mobile laboratories for the production of biological weapons. The allegation, based on reports from a source known as “Curveball,” proved to be false.

But the U.S. intelligence assessment of the supposed mobile BW labs, though erroneous, raised questions that still remain unanswered, wrote (pdf) bioweapons expert Milton Leitenberg of the University of Maryland.

According to a cryptic reference spotted by Leitenberg in the Silberman-Robb WMD Commission report, U.S. contractors performed a “replication” of the Iraqi design and found that “it works.”

The exact nature of this “replication” and whether it led to the production of actual BW agents are among several lingering questions he posed.

See “Unresolved Questions Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq” by Milton Leitenberg, June 2006.

DHS, CRS on Sensitive Security Information

“Sensitive Security Information (SSI) is information that would be detrimental to transportation security if publicly disclosed,” according to a Department of Homeland Security directive released last week under the Freedom of Information Act.

See DHS Management Directive 11056 (pdf), “Sensitive Security Information,” December 16, 2005.

Confusingly, however, SSI is also a control marking used by the Department of Agriculture to mean something quite different, observed information policy expert Harold C. Relyea of the Congressional Research Service in a new report (pdf) on classification and other information controls.

SSI “is both a concept and a control marking used by the Department of Agriculture (USDA), on the one hand, and jointly by the Transportation Security Administration (TSA) of the Department of Homeland Security as well as by the Department of Transportation, on the other hand, but with different underlying authorities, conceptualizations, and management regimes for it,” he wrote.

See “Security Classified and Controlled Information: History, Status, and Emerging Management Issues,” June 26, 2006.

While the number of different designations for “sensitive but unclassified” information has been estimated at over 60, that number approaches 100 if different agency definitions of the same designation are taken into account, according to a Justice Department official.

Facing Death: Mortuary Affairs in Joint Operations

In a somewhat gruesome but unblinking new publication (pdf) prepared for the Joint Chiefs of Staff, the U.S. military prescribes doctrine for the recovery, identification, handling and burial of deceased soldiers, enemy combatants and civilian detainees.

The violent, horrible death of combatants and non-combatants is of course a defining characteristic of war. And the strange efforts by the Bush Administration to prevent the media from photographing flag-draped coffins of soldiers killed in Iraq (until a lawsuit overturned the policy last year) did nothing to change this reality.

The new doctrinal publication anticipates that the casualties of war may be mutilated or dismembered. They may be dangerously contaminated with chemical or biological agents or radioactive materials. Mass casualties may overwhelm existing facilities, forcing improvised solutions such as mass interment.

The publication stresses the dignified treatment of the dead, and includes summary accounts of the rituals associated with Protestant, Catholic, Jewish and Muslim religious traditions. (“Other than common respect, Buddhists do not have any particular requirements concerning the handling of human remains following death.”)

See “Mortuary Affairs in Joint Operations,” Joint Publication 4-06, June 2006 (195 pages, 2.5 MB).

GAO Says It Will Forego Oversight of Intelligence

One way to supplement and improve intelligence oversight would be to employ the Government Accountability Office (GAO), an investigative arm of Congress, to perform routine audits of key intelligence functions.

Yet this potentially valuable oversight tool lies dormant due to opposition from the CIA and other intelligence agencies.

The GAO will not even attempt to conduct oversight of intelligence unless it is specifically tasked to do so by the Congressional intelligence committees, a GAO official said (pdf) last week.

“For us to undertake such work would require the sponsorship of the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence.”

“While we have the authority to do such work, we lack the cooperation we need to get our job done in that area. As a result, unless and until we receive such cooperation, and given GAO’s limited recourse, we will continue our long-standing policy of not doing work that relates directly to intelligence matters unless requested to do so by one of the select intelligence committees.”

The statement appeared in a June 14 letter report to Congress on security clearance policy (at footnote 1).

This places responsibility on the intelligence committees to fully utilize the tools at their disposal, including the GAO.

“Every committee member up for re-election in 2006 and 2008 … should be required to commit publicly to applying the full weight of the GAO, with added resources, to intelligence matters,” urged Robert Steele of Open Source Solutions.

In 2001 testimony, a GAO official outlined his agency’s authority to conduct intelligence oversight and described the history of GAO access to intelligence information.

“We have not actively audited the CIA since the early 1960s, when we discontinued such work because the CIA was not providing us with sufficient access to information to perform our mission,” said Harry L. Hinton, Jr.

See “Observations on GAO Access to Information on CIA Programs and Activities,” July 18, 2001.

And see, relatedly, “CIA News, Inc.” from the Project on Government Oversight.

Gen. Hayden on Intelligence Oversight (2005)

Gen. Michael Hayden, who is now the new CIA director, presented himself as a committed proponent of intelligence oversight in an April 2005 hearing on his nomination to become Deputy Director of National Intelligence.

But the record of that hearing, which has just been published, takes on a different aspect in light of the NSA warrantless surveillance program which was disclosed by the New York Times in December 2005 and kept secret from most members of the congressional intelligence committees.

“In a variety of sessions I have tried to be completely open and have treated the Committee as a stakeholder in our operational successes,” Gen. Hayden told the Senate Intelligence Committee in spring 2005 (at p. 49 of the PDF version).

He explained his understanding of the indispensable role of oversight.

“To be successful, the American intelligence community has to be very powerful and largely secret. And yet we live in a political culture that distrusts two things most of all: power and secrecy.”

“The path through what would otherwise be an unsolvable dilemma is the Congressional oversight structure where the people’s elected representatives have full access to our activities — thus ensuring necessary secrecy while creating the public confidence that ultimately allows us to create and exercise the powers that we need,” Gen. Hayden said then.

It follows logically that a failure to provide elected representatives with “full access to our activities” would engender a loss of public confidence.

See “Nomination of Lt. Gen. Michael V. Hayden to be Principal Deputy Director of National Intelligence,” hearing before the Senate Select Committee on Intelligence, April 14, 2005.

DoJ Inspector General Report on Moussaoui

The Department of Justice Inspector General released a newly declassified version of its 2004 audit of the FBI’s handling of intelligence information related to the September 11 attacks, including a newly disclosed chapter (large pdf) on the case of Zacarias Moussaoui.

In a previously released version of the report, the entire chapter 4 on Moussaoui had been withheld by court order because of Moussaoui’s ongoing trial. With the conclusion of that trial last month, the suppressed chapter was approved for release.

See “A Review of the FBI’s Handling of Intelligence Information Related to the September 11 Attacks,” as released June 16, 2006.

The Mubtakkar of Death

Al Qaeda terrorists contemplated an attack on New York subways in 2003 using an “easily constructed” device called a “mubtakkar” to release cyanide gas, according to a story in Time Magazine this week.

But there are reasons to question the reliability and significance of the story, suggested chemist George Smith of

For one thing, “why, if the mubtakkar of death is so easy to make has it not been seen since, or employed in Iraq, or used anywhere there have been other terror attacks?”

See Smith’s skeptical account on his new blog Dick Destiny here and here.

An overview of chemical warfare agents and analytical methods for their identification was prepared this year by Defence Research and Development Canada.

See “Analysis of Chemical Warfare Agents: General Overview, LC-MS Review, In-House LC-ESI-MS Methods and Open Literature Bibliography” (pdf), Defence Research and Development Canada, March 2006.

Selected Docs on Military Policy

“The alteration of official DoD imagery by persons acting for or on behalf of the Department of Defense is prohibited,” advises a new Pentagon Instruction. See “Alteration of Official DoD Imagery” (pdf), DoD Instruction 5040.05, June 6, 2006.

“The days of total air superiority by friendly forces are over. Our potential enemies now may have as many or more aircraft than we do,” according to a new Army correspondence course on defending against attacks from the air. “Our potential enemies will gain air superiority over sectors of the battlefield for certain periods…. Successful small arms defense against air attack is an essential element of survival on the battlefield.” See “Small Arms Defense Against Air Attack” (pdf), US Army Air Defense Artillery School, May 2006.

Some recent Congressional Research Service items include:

“Peacekeeping and Related Stability Operations: Issues of U.S. Military Involvement” (pdf), updated May 18, 2006.

“Periods of War” (pdf) (on the official beginning and ending dates of war), May 1, 2006.

And for no extra charge: “Net Neutrality: Background and Issues” (pdf), May 16, 2006.