Posts from August, 2007

Court Overturns Dismissal of “State Secrets” Case

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.”

The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege.

A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.

CRS Reports on Various Topics

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Capital Punishment Overview: 2006-2007 Term of the Supreme Court,” July 20, 2007.

“Globalization, Worker Insecurity, and Policy Approaches,” updated July 24, 2007.

“Executive Branch Reorganization and Management Initiatives: A Brief Overview,” updated July 10, 2007.

“Constitutional Limits on Punitive Damages Awards: An Analysis of the Supreme Court Case Philip Morris USA v. Williams,” updated July 17, 2007.

“Internet Search Engines: Copyright’s ‘Fair Use’” in Reproduction and Public Display Rights,” updated July 12, 2007.

“Nuclear Energy Policy,” updated July 12, 2007.

“The Committee on Foreign Investment in the United States (CFIUS),” updated July 23, 2007.

“Private Security Contractors in Iraq: Background, Legal Status, and Other Issues,” updated July 11, 2007.

Increased Domestic Role for Intelligence Foreseen

Spy satellites and other classified intelligence technologies are poised to play a greater role in domestic homeland security and law enforcement missions, challenging long-standing legal and policy barriers against their domestic use.

The Wall Street Journal reported today that the Director of National Intelligence recently authorized access to intelligence satellite products by officials of the Department of Homeland Security to help support border security. See “U.S. to Expand Domestic Use of Spy Satellites” by Robert Block, Wall Street Journal, August 15, p.1.

A comprehensive 2005 government study (pdf) of the use of intelligence capabilities for domestic applications concluded that “significant change is needed in policy regimes regulating domestic use of IC [intelligence community] capabilities” in order to permit their full exploitation.

“The use of IC capabilities for domestic purposes should be… based on the premise that most uses of IC capabilities are lawful rather than treating any use as an exception to the rule requiring a case-by-case adjudication,” the study said.

“There is an urgent need for a top-down, Executive Branch review of all laws and policies affecting use of intelligence capabilities for domestic purposes,” the report said.

In particular, the 1981 Executive Order 12333 which governs intelligence activities “should be amended to permit as unfettered an operational environment for the collection, exploitation and dissemination [of domestic intelligence data] as is reasonably possible,” the report recommended.

The authors acknowledged that such “unfettered” operation would require increased oversight, but they suggested that it could be satisfactorily accomplished by the Privacy and Civil Liberties Oversight Board. The Board has been a minor, not notably influential player in recent intelligence policy disputes.

The report acknowledged in passing a problematic 2001 U.S. Supreme Court ruling in the case Kyllo v. United States, which concluded that the use of infrared sensors to scan a private residence for heat lamps used in marijuana cultivation constituted an unlawful warrantless search. The ruling appears to be significantly at odds with the new domestic intelligence thrust.

“This decision has placed in question the continued viability of past settled practice of the IC within the domestic domain,” the study delicately observed.

Nevertheless, “to date we are not aware of any clear authoritative guidance issued on the impact, if any, of this decision.”

The 2005 study was first reported by the Wall Street Journal today. A copy of the unclassified study, which was “produced solely for the use of the United States Government,” was obtained by Secrecy News. See “Civil Applications Committee (CAC) Blue Ribbon Study,” Independent Study Group Final Report, September 2005.

Intelligence support to domestic environmental monitoring and emergency response has been conducted since the 1970s under the supervision of the little-known interagency Civil Appplications Committee. See this 2001 fact sheet describing the history and mission of the Committee.

Ballistic Missile Defense in Europe

The Missile Defense Agency has published a glossy brochure setting forth its vision of a missile defense system based in Europe. See “Proposed U.S. Missile Defense Assets in Europe” (pdf), Missile Defense Agency, June 15, 2007.

Various perspectives on the missile defense program were presented in a recently updated report of the Congressional Research Service, “Long-Range Ballistic Missile Defense in Europe” (pdf), July 25, 2007.

American War Casualties: Lists and Statistics

Comprehensive data on U.S. military deaths from the Revolutionary War and the War of 1812 through Operation Iraqi Freedom were presented in a recently updated report (pdf) from the Congressional Research Service.

“This report is written in response to numerous requests for war casualty statistics and lists of war dead. It provides tables, compiled by sources at the Department of Defense (DOD), indicating the number of casualties among American military personnel serving in principal wars and combat actions.”

For the more recent military actions beginning with the Korean War, information on specific cause of death and demographic data are provided.

The Congressional Research Service does not make its publications directly available to the public. A copy of the report was obtained by Secrecy News.

See “American War and Military Operations Casualties: Lists and Statistics,” updated June 29, 2007.

More from CRS

Some more noteworthy new products from the Congressional Research Service that have not been made readily available to the public include these (all pdf).

“Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,” updated July 25, 2007.

“Iraq and Al Qaeda,” updated July 27, 2007.

“Air Cargo Security,” updated July 30, 2007.

“F-35 Joint Strike Fighter (JSF) Program: Background, Status, and Issues,” updated July 19, 2007.

“Navy F/A-18E/F Super Hornet and EA-18G Growler Aircraft: Background and Issues for Congress,” updated July 23, 2007.

“Comparison of ‘Wounded Warrior’ Legislation: H.R. 1538 as Passed in the House and Senate,” July 27, 2007.

Jeff Richelson’s U.S. Intelligence Community

For decades now “The U.S. Intelligence Community” by Jeffrey T. Richelson has been the best one-volume account of the structure and operation of the far-flung U.S. intelligence bureaucracy. The fifth edition has just been published.

When I encounter an unfamiliar intelligence term, an odd acronym or a reference to an obscure office somewhere in the bowels of U.S. intelligence, I find that Richelson’s book more often than not — more often than Google — provides the explanation and the needed background, typically with a footnote to an official source.

The latest edition includes new material on homeland security intelligence, detainee interrogation, and other post-9/11 developments.

“The U.S. Intelligence Community” by Jeffrey T. Richelson, 5th edition, is published by Westview Press.

FOIA Performance is Deteriorating, Journalists Say

If the Leahy-Cornyn bill to strengthen the Freedom of Information Act that was adopted in the Senate last week becomes law, as expected, it will not happen a moment too soon, because current government handling of FOIA requests is deteriorating, according to a new analysis from the Coalition of Journalists for Open Government.

“Over the past nine years, the number of FOIA requests processed has fallen 20%, the number of FOIA personnel is down 10%, the backlog [of pending requests] has tripled, and costs of handling a request are up 79%,” the CJOG study (pdf) reported.

In fact, “the cost of processing FOIA requests is up 40% since 1998, even though agencies are processing 20% fewer requests.”

Productivity of FOIA requests has dropped in other respects as well.

“The number of denials [of FOIA requests] increased 10% in 2006 and the number of full grants, in which the requester got all the information sought, hit an all-time low.”

See “Still Waiting After All These Years: An in-depth analysis of FOIA performance from 1998 to 2006,” principally authored by Pete Weitzel, Coalition of Journalists for Open Government, August 8, 2007.

ACLU Seeks Foreign Intelligence Surveillance Court Records

The American Civil Liberties Union filed an unusual motion (pdf) with the Foreign Intelligence Surveillance Court seeking public disclosure of recent Court orders interpreting the Foreign Intelligence Surveillance Act (FISA), the law that regulates warrantless surveillance within the United States.

“Over the next six months, Congress and the public will debate the wisdom and necessity of permanently expanding the executive’s authority to conduct intrusive forms of surveillance without judicial oversight,” the ACLU motion stated, referring to the debate over the recent amendments to the FISA that will sunset in six months if they are not renewed.

“Unless this Court releases the sealed materials, this debate will take place in a vacuum.”

“Publication of the sealed materials would assist the public in evaluating the significance of recent amendments to FISA and determining for itself whether those amendments should be made permanent,” the ACLU argued.

A copy of the August 8 ACLU Motion for Release of Court Records is posted here.

An ACLU press release on the motion is here.

The ACLU motion admitted that the Foreign Intelligence Surveillance Court’s docket “consists mainly of material that is properly classified.” However, it noted, “on at least two occasions in the past, this Court has recognized the public interest in the Court’s [activities] and has accordingly published its rulings.”

“Disclosure of the sealed materials, with redactions to protect information that is properly classified, would be consistent with the Court’s past practice and procedural rules,” the ACLU said.

CRS Reports on Openness and Transparency

Recent reports of the Congressional Research Service on topics related to openness and transparency include the following (all pdf).

“Does Price Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Health Sector,” July 24, 2007.

“State E-Government Strategies: Identifying Best Practices and Applications,” July 23, 2007.

“Clinical Trials Reporting and Publication,” updated July 12, 2007.

“Freedom of Information Act Amendments: 110th Congress,” updated July 10, 2007.