Posts from March, 2007

CIA Unlawfully Imposed Prior Restraint, Lawsuit Alleges

The Central Intelligence Agency improperly blocked a former CIA employee from disseminating unclassified information about what he considered illicit CIA contacts with a foreign national suspected of criminal acts, according to a lawsuit (pdf) filed this week in DC District Court.

Franz Boening, who was employed by CIA from 1980 to 2005, contended that “the CIA maintained a special relationship with a foreign individual who committed unlawful human rights violations and criminal acts with the knowledge of the CIA.” He further alleged that he has suffered retaliation for expressing his concerns.

According to Mr. Boening, “CIA may have violated US laws during its 10+ year relationship with [name redacted].”

As required by his non-disclosure agreement, Mr. Boening submitted his proposed disclosures to the CIA Publication Review Board, which refused to authorize their release.

“Although the entire analysis and factual recitation of the CIA’s involvement with this individual was based purely on publicly available nongovernmental (including newspaper articles) and unclassified government websites, the CIA ‘classified’ more than a dozen pages of publicly available newspaper, radio, and television information, a practice that was commonly assumed to have been discontinued by the CIA years ago,” according to the complaint, filed by attorney Mark S. Zaid on March 5.

Two former CIA officials contacted by Secrecy News declined to comment on the case. Another official said that the handling of the Boening matter over the last couple of years coincided with a loss of autonomy at the CIA Publication Review Board in favor of increased control by agency Information Review Officers (IROs). That trend may now be reversing, the official said, under the current DCIA Michael Hayden.

Mr. Boening appears to have been the first and perhaps the only government official ever to take advantage of a provision of the executive order on classification that encourages authorized holders of classified information to challenge its classification if they believe it is improper (executive order 13292, section 1.8).

In order to deflect his challenge, the new complaint says, the CIA argued that he was not technically an “authorized holder” of the information in question and therefore did not have standing to challenge its classification status.

A Memorable Leak Case

In the course of an urgent search for the sources who were providing classified information to journalist Jack Anderson in 1971, the Nixon Administration discovered a surprising culprit.

A Navy yeoman in the National Security Council named Charles Radford was not only the “almost certain source” of the Jack Anderson leaks, but he was also in the habit of routinely copying classified documents in the briefcases of Henry Kissinger, Alexander Haig, and other senior Administration officials, and forwarding the documents to the Joint Chiefs of Staff.

In effect, the Joint Chiefs were spying on the Nixon White House.

“The P[resident] was quite shocked, naturally, by the whole situation,” according to the diary of Nixon aide H.R. Haldeman.

The whole episode, which has been previously described in various memoirs and historical studies, was recalled in a recent edition of Foreign Relations of the United States (FRUS), which also published some newly transcribed Presidential discussions of the case (pdf).

Admiral Welander, yeoman Radford’s boss, said that the yeoman should be put in jail for his actions, Haldeman wrote.

Admiral Moorer, the Chairman of the Joint Chiefs, said that Admiral Welander should be put in jail.

Kissinger said, “I think Moorer should be in jail.”

In the end, nobody went to jail.

“Our best interests are served by not, you know, raising holy hell,” concluded President Nixon.

See the relevant excerpts on the Radford-Joint Chiefs spying case (documents 164-166) here. The full text of the source volume of FRUS is here.

A controversial proposal by Sen. Jon Kyl to criminalize leaks of classified information contained in certain reports to Congress may be considered by the Senate today or tomorrow.

Conservative Leader Urges Public Access to CRS Reports

Paul M. Weyrich, the influential culture warrior who leads the arch-conservative Free Congress Foundation, has called upon Congress to grant public access to products of the Congressional Research Service.

“It seems to me that it is time to end the foolishness and just make the CRS website available to the general public,” Mr. Weyrich wrote in a new commentary.

Does Mr. Weyrich’s endorsement of public access to CRS reports imply that continued restrictions on such access might actually be desirable? Of course not.

Here are some recent acquisitions (all pdf).

“The Executive Office of the President: An Historical Overview,” updated November 28, 2006.

“Radioactive Tank Waste from the Past Production of Nuclear Weapons: Background and Issues for Congress,” updated January 3, 2007.

“United Nations Reform: U.S. Policy and International Perspectives,” January 22, 2007.

Sunshine Week

Sunshine Week, which falls this year on March 11-17, is an annual effort by news organizations, libraries and public interest groups to focus public attention on the importance of open government.

Next week, dozens of programs across the country will explore the costs of secrecy, the virtues of openness, and the path forward.

See this calendar of events.

Next week may also see House action on three open government bills that have been advanced by the House Committee on Oversight and Government Reform under the leadership of Rep. Henry Waxman.

The pending bills include one on Freedom of Information Act amendments, one on amendments to the Presidential Records Act, and one on disclosure of donations to Presidential libraries. Markup of the bills will take place on March 8, and House floor action is expected next week.

“State Secrets” Shield CIA from Torture Allegations

A federal appeals court ruled last week (pdf) that the overriding need to protect “state secrets” makes it impossible to litigate claims by a German citizen named Khaled el-Masri that he was illegally detained and abused by the Central Intelligence Agency in a case of “extraordinary rendition.” The appeals court upheld a lower court’s earlier dismissal of the proceeding.

In a March 2 decision, the court rehearsed the allegations at issue as well as the relevant case law on the state secrets privilege.

El-Masri would not be able to make his case, the court concluded, except by using “[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations.”

Similarly, said the court, the CIA could not defend itself against the allegations “without using privileged evidence.”

“The main avenues of defense available [to CIA] in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability. Any of those three showings would require disclosure of information regarding the means and methods by which the CIA gathers intelligence.”

The court rejected the contention by the defense that by yielding to the government’s state secrets claims, the judiciary had abdicated jurisdiction over a case of egregious governmental abuse.

“Contrary to El-Masri’s assertion, the state secrets doctrine does not represent a surrender of judicial control over access to the courts,” the court said.

“As we have explained, it is the court, not the Executive, that determines whether the state secrets privilege has been properly invoked. In order to successfully claim the state secrets privilege, the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret,” the court ruling stated.

“Today the appeals court gave the CIA complete immunity for even its most shameful conduct,” said ACLU attorney Ben Wizner, who represented El-Masri. “Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured.”

Under current legal conditions, there is no disincentive for the government to invoke the state secrets privilege, which often terminates litigation in its favor. But a pending bill introduced by Rep. Henry Waxman and several House colleagues would change that calculation in the case of whistleblower lawsuits.

Under the provisions of the Whistleblower Protection Act of 2007, “the court shall resolve the disputed issue of fact or law in favor of the plaintiff,” if the government’s use of the state secrets privilege prevents the plaintiff from making his case and there is independent support for his argument from an Inspector General investigation.

And whenever the state secrets privilege is asserted, the bill would also require the agency head to submit a report to Congress “describing the reasons for the assertion, explaining why the court hearing the matter does not have the ability to maintain the protection of classified information related to the assertion,” and providing other relevant information. See section 10 of HR 985.

Selected CRS Reports

Some recent products of the Congressional Research Service obtained by Secrecy News that have not previously been made readily available in the public domain include the following (all pdf).

“Congressional Oversight of Intelligence: Current Structure and Alternatives,” updated February 15, 2007.

“Intelligence Spending: Public Disclosure Issues,” updated February 15, 2007.

“The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions,” updated February 15, 2007.

“Polygraph Use by the Department of Energy: Issues for Congress,” updated February 14, 2007.

“Data Mining and Homeland Security: An Overview,” updated January 18, 2007.

“Abu Sayyaf: Target of Philippine-U.S. Anti-Terrorism Cooperation,” updated January 24, 2007.

“Airport Improvement Program: Issues for Congress,” February 26, 2007.

“Tracking Current Federal Legislation and Regulations: A Guide to Resources,” February 28, 2007.

Kyl Amendment on Leaks is Withdrawn, Amended, Reintroduced

A sweeping proposal by Senator Jon Kyl (R-AZ) to criminalize the unauthorized disclosure or publication of classified information about U.S. Government activities relating to terrorism was abruptly withdrawn on February 28 in the face of vigorous protests by public interest, press and First Amendment advocacy groups.

But then a modified, more narrowly focused version was reintroduced on the Senate floor on March 2 as an amendment to S.4, the pending bill on enacting the remaining recommendations of the 9/11 Commission.

The new Kyl amendment (pdf) would penalize employees of the House or Senate or other authorized personnel who knowingly disclose classified information that is contained in a report to Congress.

“Singling out employees of Congress for criminal sanctions would be virtually unprecedented,” said Kate Martin, director of the Center for National Security Studies.

It also “raises serious separation of powers concerns,” she said, since classification criteria and practices are dictated by the executive branch. “And it would demonstrate a lack of confidence by the Congress that it can police its own house.”

White House “Strongly Opposes” Intel Budget Disclosure

The Bush Administration formally notified (pdf) the Senate this week that it objects to a provision in a pending bill on homeland security that would require publication of the annual intelligence budget total.

“The Administration strongly opposes the requirement in the bill to publicly disclose sensitive information about the intelligence budget.”

“Disclosure, including disclosure to the Nation’s enemies and adversaries in a time of war, of the amounts requested by the President and provided by the Congress for the conduct of the Nation’s intelligence activities would provide no meaningful information to the general American public, but would provide significant intelligence to America’s adversaries and could cause damage to the national security interests of the United States,” the White House statement said.

It is hard to find a serious intelligence professional who agrees with this White House view.

Because the intelligence budget total is a high-level aggregate of spending levels in more than a dozen different agencies, its intelligence value to U.S. adversaries is practically nil, since funding for any particular program is insulated many layers beneath the enormous top-line figure. On the other hand, disclosure of the total figure would provide the public with a reliable index of the magnitude of intelligence spending to compare with spending on other national priorities.

To critics and other observers, intelligence budget secrecy is the preeminent example of unnecessary and inappropriate classification.

For that reason, the 9/11 Commission recommended that budget disclosure is the best way to begin reversing the spread of bureaucratic secrecy that has undermined the performance of U.S. intelligence agencies. The 9/11 Commission recommendation was incorporated into the Senate bill (S.4), which is expected to pass the Senate next week.

In other important disputes, the new White House statement also took sharp exception to provisions in the bill that would strengthen the Public Interest Declassification Board, enhance whistleblower protections for intelligence community employees, and require increased intelligence and information sharing with state and local officials.

Army Casualty Program

The somber duties associated with official reporting of U.S. Army casualties, including notification of survivors, are spelled out in exhaustive detail in a new Army regulation (pdf).

“Generally, casualty matters are unclassified,” the regulation states (obliquely admitting the possibility of classified casualties), “but they are assigned the protective marking of For Official Use Only” until after notification of next of kin.

The new regulation provides “notification scripts” for use in informing family members of their loss in various circumstances including, for example, suspected friendly fire cases:

“The Secretary of the Army has asked me to express his deep regret that your (relationship) (died/was killed in action) in (country) on (date). (State the circumstances). His/her death is a result of suspected friendly fire. A formal investigation is being conducted….”

“The CNO [casualty notification officer] will internalize the script … before proceeding to make notification and will relay the information orally and in person in a calm and sensitive manner to the person being notified,” the regulation states.

“The CNO team members should not have alcohol on their breath or be inebriated.”

See “Army Casualty Program,” Army Regulation AR 600-8-1, February 28, 2007.