Posts from November, 2006

Burden of Proof in AIPAC Case is “Not Insubstantial,” Court Says

A federal court this month denied a motion that would have eased the government’s prosecution of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information.

Prosecutors had argued that they should not be obliged to prove that the defendants “actually knew the disclosure of the information was potentially harmful to the United States.”

But in a ruling from the bench on November 16, Judge T.S. Ellis III denied the motion and said they must prove the defendants had such knowledge.

The transcript of the November 16 hearing (pdf) was placed in the court docket yesterday and a copy was obtained by Secrecy News.

The latest ruling followed a momentous August 14 decision that non-government personnel who are not accused of espionage could be tried under the Espionage Act for receipt and transmission of classified information. In that decision, Judge Ellis denied a defense motion to dismiss the case altogether on constitutional and other grounds.

But he also imposed significant requirements on the prosecution to show that the defendants knew they were obtaining closely held national defense information; knew that it was unlawful to disclose that information; knew that the recipients in the press and a foreign embassy were not authorized to receive it; and that the defendants knew that disclosure of the information would be potentially damaging to the United States.

In an August 18 motion for clarification (pdf), prosecutors objected to the last requirement.

“Case law does not support the notion that ‘willful’ intent requires the government to prove that a defendant actually knew the information was potentially harmful to the United States,” the government argued.

But it does now, Judge Ellis said.

“To the extent that the motion seeks clarification that the Government need not prove at all that the defendants knew that their disclosure was potentially harmful to the United States, that’s not clarification, that’s reconsideration. So, I will deny it.” (Transcript, page 10).

As a result of the ruling, the prosecution faces a considerable, possibly insurmountable obstacle.

“You prevailed in significant part [against the defendants' earlier motion to dismiss],” Judge Ellis told prosecutors on November 16. But “in prevailing, you have a burden that is not insubstantial.”

Likewise, “in losing [the motion to dismiss, defense attorneys] Mr. Nassikas and Mr. Lowell see some benefits to them,” Judge Ellis observed.

Given the difficulty of meeting the Court’s requirements, the fear that this unprecedented case would have a chilling effect on reporters and public interest advocates who depend upon unauthorized access to classified information has been muted somewhat.

Today, it might be noted, the New York Times published the full text of a classified November 8 memorandum from National Security Advisor Stephen Hadley regarding Iraq.

A trial date in the AIPAC case had originally been set for August 2006. But due to the complexity of the case the date has been repeatedly deferred. Judge Ellis said he would reserve May and June 2007 for a possible trial.

He also said that a leak investigation into who disclosed pre-indictment reports of the case to CBS News in August 2004 is “ongoing.”

NRC is Not Secretive Enough, Says NBC News

Thousands of sensitive Nuclear Regulatory Commission documents regarding nuclear power plant security and vulnerability are publicly available in public document rooms across the country, NBC News reported on November 27 in a rather breathless “hidden camera” investigation that illustrates the difficulty that some people have in thinking clearly about secrecy and security.

“Many of the documents we were able to access were among the thousands of files the NRC pulled from its Web site after 9/11, deemed too sensitive to be available to the public. But that same effort to clean out sensitive information, it seems, was never made with NRC’s document collections in public libraries across the country,” reported Lisa Myers of NBC.

“What this means is that we’ve given the terrorists an easy map in order to find out about our nuclear facilities,” former New Jersey Governor and 9/11 Commission Chair Thomas Kean told NBC. “It’s the worst possible thing we could be doing.”

In fact, however, it is simple to think of worse possible things, beginning with publicizing the supposed existence of “an easy map” for terrorists.

“It is baffling to me that the NRC would consider this information so sensitive that it should be pulled from its on-line database, yet apparently the information was considered safe enough to be left in more than 80 public libraries scattered throughout the nation,” wrote Rep. Bart Gordon (D-TN) of the House Science Committee on October 27 (pdf).

But the distinction should not be hard to understand: The local public document rooms serve the communities that are most directly affected by nuclear plant safety and security issues. In contrast, an on-line database is globally accessible to anyone with an internet connection. It is not surprising that this elementary difference would be reflected in official disclosure policy.

“The NRC is aware that a limited amount of [sensitive] information continues to exist in the public domain,” according to an official statement (pdf) from the Nuclear Regulatory Commission responding to the NBC News report.

“However, NRC believes that the usefulness of this information is minimal given its age and subsequent changes to and improvements in security programs and physical modifications that have been made to nuclear facilities since Sept. 11.”

“The agency decided not to attempt to retrieve or restrict access to this information and instead has focused its actions on more recent and relevant information available in public electronic systems,” the NRC said.

That’s not good enough, fumed David Lochbaum, a nuclear safety engineer with the Union of Concerned Scientists, who echoed the views of Rep. Gordon.

“I fail to understand why I cannot obtain documents from the NRC’s [main] Public Document Room that I can access from … any of the dozens of other local public document rooms across the nation,” he wrote (pdf). “This profound inconsistency tells me loud and clear that NRC is wrong, either in denying access to the documents in the Public Document Room or in not restricting access to the documents elsewhere.”

If NRC had unlimited resources and no other responsibilities, then absolute consistency of the kind advocated by the Union of Concerned Scientists might be a virtue. But that is not the case.

In Secrecy News’ view, all of these individuals and NBC News have misconstrued the situation. The NRC has acted appropriately under the circumstances.

The fact is that unclassified NRC reports on power plant security and vulnerability — some of them quite graphic and detailed — have been deposited in public reading rooms for decades. Their purpose is to address community concerns about safety and security at local nuclear power plants.

There has never been a single case in which the availability of such reports caused or contributed to a public health, safety or security hazard.

Meanwhile, we are living in an era of unprecedented growth in official secrecy. Unclassified government records on a wide variety of matters affecting public health and national policy are increasingly marked “for official use only” and off-limits to citizens and taxpayers.

Scolding government bureaucracies for not being secretive enough undermines efforts to achieve the increased openness that the 9/11 Commission said was needed to prevent future terrorist attacks.

More fundamentally, there are an infinite number of ways to cause destruction and wreak havoc. Using the media to ratchet up public fear over the nightmare scenario du jour is the work of terrorists. It would be a pity to help them.

Some Notable CRS Reports

When new leadership takes control in the 110th Congress, the public may finally gain routine online access to finished products of the Congressional Research Service.

The prospects for adopting this simple change in disclosure policy are enhanced by the fact that such a move would not require Bush Administration concurrence.

For the time being, however, congressional policy prohibits direct public access to CRS reports.

Some notable new CRS reports obtained by Secrecy News that are not otherwise available online include the following (all pdf).

“Intelligence Estimates: How Useful to Congress?”, November 21, 2006.

“Iraqi Civilian Deaths Estimates,” November 22, 2006.

“Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues,” updated November 8, 2006.

“Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States,” September 7, 2006.

Tackling Sensitive But Unclassified Information

The proliferation of new restrictions on the disclosure of information that is designated “sensitive but unclassified” (SBU) has been the subject of much churning within the national security policy apparatus this year.

Last December, President Bush ordered the development of recommendations to standardize procedures for marking information as SBU. By some counts, there are more than one hundred different SBU-type categories used in executive branch agencies.

“The growing and non-standardized inventory of SBU designations and markings is a serious impediment to information sharing among agencies, between levels of government, and, as appropriate, with the private sector,” according to a recent report to Congress.

The recommendations to reduce and standardize this hypertrophied tangle of restrictions were due last July. But the initial submission was deemed unsatisfactory and an interagency working group was sent back to the drawing board with a new deadline of January 2007.

The latest official word on the subject is contained in Chapter 10 of the “Information Sharing Environment Implementation Plan” (pdf), published by the Office of the Director of National Intelligence, November 2006.

Extensive background on the challenges posed by SBU and the options for dealing with it can be found in a newly updated report on the subject from the Congressional Research Service. See “Sensitive But Unclassified Information and Other Controls: Policy and Options for Scientific and Technical Information” (pdf), updated November 14, 2006.

A focused look at the handling and mishandling of SBU information within the Department of Justice was provided by the Government Accountability Office in a new report last week. See “Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information” (pdf), [GAO-07-83], October 2006.

Revisiting the State Secrets Privilege

A new assessment of the “state secrets privilege” disputes the claim presented in several other recent critiques that government reliance on the privilege to curtail or terminate sensitive litigation has increased in recent years.

“I find that the Bush Administration does not differ qualitatively or quantitatively from its predecessors in its use of the privilege,” concludes Robert M. Chesney in a forthcoming paper in the George Washington Law Review.

Along with a survey of the origins and the history of the state secrets privilege, the author, a law professor at Wake Forest University, challenges the contentions of legal scholars such as William Weaver and Louis Fisher who argue that there has been a distinct increase in use of the privilege.

In large part, the dispute reflects definitional differences regarding what constitutes a state secrets case, when the privilege is asserted, and how complete the available data are.

In a useful appendix to his paper, Prof. Chesney provides a tabulation of 89 opinions in which the state secrets privilege has been asserted since 1954. But these only include published opinions, a subset of the unknown total. And for technical reasons, he excludes some cases that have been previously cited as state secrets cases but includes others that have not been.

Fundamentally, he writes, “The reality is that we simply do not know, and have no way of finding out, just how frequently the privilege may have been asserted during any particular period.”

After reviewing how the government has used privilege over the years, he concludes that “the pattern of implementation of the state secrets privilege does not depart significantly from its past usage.”

Yet Prof. Chesney adds that “To say that the privilege has long been with us and has long been harsh is not to say, however, that it is desirable to continue with the status quo.”

He considers the feasibility of enacting reforms to limit or modify the assertion of the privilege and finds reason to conclude that such reforms may be appropriate, particularly “where the legality of government conduct is itself in issue.”

The abstract and a link to the full text of “State Secrets and the Limits of National Security Litigation” by Robert Chesney may be found here.

Professor Chesney blogs on national security law and policy at National Security Advisors.

“The state secrets privilege is too easy to abuse” wrote Louis Fisher in another new commentary for the Nieman Watchdog.

Confronting Secret Law

The U.S. Supreme Court should reject the idea of a secret law or directive that purports to regulate public behavior yet cannot be disclosed, several public interest groups argued yesterday.

The groups filed amicus curiae briefs in support of a petition by John Gilmore, who challenged a government requirement that he produce official identification in order to board an airplane and was told that he could not see the underlying policy document because it is “sensitive security information.”

The government says (pdf) that Mr. Gilmore had adequate notice of the ID requirement without inspecting the written policy.

But “The laws of the United States do not permit the Executive Branch to govern public conduct through secret laws,” wrote Marcia Hofmann of the Electronic Frontier Foundation (EFF), and the Court should therefore agree to review the Gilmore matter. The FAS Project on Government Secrecy signed on to the EFF brief (pdf).

Other amicus briefs were filed by the Reporters Committee for Freedom of the Press and the Electronic Privacy Information Center.

The latest briefs, and other background on the case, can be found here.

See also “Groups ask high court to review aviation ID policies,” by Andrew Noyes, National Journal’s Technology Daily, November 14.

Secrecy News will resume publication after Thanksgiving.

Update: There’s more on the story here.

The Limits of Transparency

Openness in government is a prerequisite to democratic self-rule and is the best available antidote to official corruption.

Yet greater transparency, particularly on the international level, “is not an unmitigated good,” argues Kristin M. Lord in a new, somewhat contrarian book.

“In all likelihood, the trend toward greater transparency will be at once positive and pernicious,” she writes, particularly since some disputes are based on real conflicts of interest and are not simple misunderstandings that could be resolved through greater disclosure.

“More information about the military capabilities of other states may show vulnerability and encourage aggression by the strong against the weak. Greater transparency can highlight hostility and fuel vicious cycles of belligerent words and deeds…. Transparency sometimes can make conflicts worse.”

The author illustrates her thesis with case studies of the role of information in the unfolding of the Rwanda genocide, and of information policy in Singapore’s relatively open yet rather authoritarian society. She seeks to distinguish between the means of openness and the hoped-for ends that are implicitly believed to follow from them, sometimes without justification.

For more information, including the first chapter of the book, see “The Perils and Promise of Global Transparency” by Kristin M. Lord, State University of New York Press, 2006.

The ill effects of too much transparency are still a rather hypothetical problem, since national and international efforts to control disclosure of information persist and in some cases are growing.

In another recent book, author Alasdair Roberts identifies several factors that are inhibiting transparency, including the privatization of certain categories of government information, the increasing influence of international organizations with restrictive information policies, and the growing international collaboration of security agencies.

See “Blacked Out: Government Secrecy in the Information Age” by Alasdair Roberts, Cambridge University Press, 2006.

Army Doctrine on Urban Operations

The conduct of military operations in urban areas is the subject of a new Army doctrinal manual (pdf).

“Of all the environments in which to conduct operations, the urban environment confronts Army commanders with a combination of difficulties rarely found elsewhere [due to its] intricate topography and high population density.”

The hazards and threats posed by the urban environment, and the spectrum of potential responses to mitigate or exploit them, are considered at length in the 315-page unclassified manual.

See “Urban Operations,” U.S. Army Field Manual FM 3-06, 26 October 2006 (a large 14 MB PDF file).

Illuminating Russia’s Main Directorate of Special Programs

The Main Directorate of Special Programs (Russian acronym: GUSP) is a somewhat mysterious Russian security organization that was established as one of the various successors to the former KGB.

“The directorate’s specialists have a great deal of experience in building fortified structures and tunnels and know how to handle explosives,” according to an article in Moskovskiy Komsomolets (16 September 1999).

“Moreover, the GUSP is the president’s very own special service and is accountable only to the head of state.”

In a neat bit of detective work, the Open Source Center (OSC) of the Office of the Director of National Intelligence noticed that new details of GUSP’s internal structure could be gleaned from official badges sold by commercial vendors of military paraphernalia.

“Russian commercial websites specializing in the sale of military insignia provided identifying information for a number of military units belonging to the Special Facilities Service (SSO) of the Main Directorate for Special Programs of the Russian Federation President (GUSP),” the Open Source Center reported this week (pdf).

“[This] is in most instances the only available public reference for these units and their affiliation with the Special Facilities Service,” the OSC said.

In another neat bit of work, Allen Thomson retrieved images of those telltale military insignia and combined them with other published material to produce “A Sourcebook on the Russian Federation Main Directorate of Special Programs (GUSP)” (pdf).

In Other News

“For those who believe in transparent government and fact-driven legislation, the power shift in the U.S. Congress represents a unique opportunity to open up one important Congressional institution — the Congressional Research Service — and bring back another one — the Office of Technology Assessment — twelve years after it was disbanded,” suggests Christian Beckner in Homeland Security Watch.

The Army Science Board has drastically reduced public disclosure of its unclassified advisory studies, Inside the Army reported. And by doing so, it may have undermined the impact of its own work. See “Citing Security, Army Tightens Reins On Science Board Research” by Fawzia Sheikh, Inside the Army, November 13.

The unprecedented prosecution of two former pro-Israel lobbyists who are charged with improperly receiving and disseminating classified information has unpleasant implications for reporters who cover national security, among others. The case was reviewed by civil libertarian Nat Hentoff in “Bush Revives Espionage Act,” Village Voice, November 10.

“The mainstream news media is too fond of articles in which it is said some flavor of demonical terror menace can be put together from cookbooks found on the Internet,” George Smith blasts on his Dick Destiny blog.

Federal Computer Week did a profile this week of, ahem, me. See “A career as a secrecy watchdog” by Aliya Sternstein, FCW, November 13.