Posts from April, 2008

House Dems Warn DHS on Domestic Intelligence Program

The Department of Homeland Security has not adequately addressed the civil liberties concerns associated with the new National Applications Office (NAO) that would promote the use of intelligence capabilities such as overhead surveillance for homeland security and other domestic purposes, three Democratic Congressmen said this week.

“Turning America’s spy satellites on the homeland for domestic law enforcement purposes is no trivial matter,” wrote Rep. Bennie G. Thompson, chair of the House Homeland Security Committee, along with Rep. Jane Harman and Rep. Christopher P. Carney.

“Although we support any Department effort to engage in more effective and responsive information sharing with our nation’s first preventers, the serious privacy and civil liberties issues that the NAO raises are manifold and multifaceted,” they wrote in an April 7 letter (pdf) to Homeland Security Secretary Michael Chertoff.

“Job number one needs to be the completion of a detailed legal framework and SOPs applicable to all NAO domains…. Only after we have had an opportunity to review these documents and to bring the privacy and civil liberties community into the process should NAO commence hiring and other development efforts.”

“Should you proceed with the NAO without addressing our concerns, we will take appropriate steps to discontinue it,” they told DHS.

The National Applications Office was formally established as “an advocate for IC [intelligence community] capabilities to serve, among others, non-traditional users in the civil, homeland security, and law enforcement communities.” See the February 2008 charter of the National Applications Office (pdf).

The Wall Street Journal reported yesterday that the Department of Homeland Security will provide additional documentation to the House Homeland Security Committee in response to its concerns. See “Privacy Fears Threaten Satellite Program” by Siobhan Gorman, April 8.

Collapse of Bee Colonies Explained?

Updated/Corrected below

The cause of the mysterious deaths of large numbers of honey bees across the United States that began in 2006 has apparently been discovered.

Scientists from the Army’s Edgewood Chemical Biological Center and the University of California at San Francisco identified both a virus and a parasite that are associated with the massive decline in the honey bee population.

See “Scientists Identify Pathogens That May Be Causing Global Honey-Bee Deaths,” Science Daily, April 26 (thanks to CB).

Update: As a commenter noted, this is old news. The Science Daily story dates from April 2007!

Additional background on the issue is available in “Recent Honey Bee Colony Declines” (pdf), Congressional Research Service, updated August 14, 2007.

The Case of Matthew Diaz

Last year, U.S. Navy Lt. Cmdr. Matthew Diaz was convicted of unlawfully disclosing classified information to an unauthorized person, after he provided the names of prisoners secretly held in military detention at Guantanamo Bay to a civil rights organization. He was sentenced to six months in prison and ordered discharged from the Navy.

Last week, Diaz was honored as a “truth teller” at the National Press Club in Washington, DC for the very same action.

He received the Ridenhour Award, named for the late Ron Ridenhour, who revealed the 1968 massacre of Vietnamese at My Lai.

“Lt. Cmdr. Diaz demonstrated independent judgment, fidelity to the Constitution, and uncommon courage,” according to the Ridenhour Award statement. “By disclosing the names of prisoners secretly detained at Guantanamo, he broke ranks and he violated the law, and for that he has paid a serious price. But we believe that he also demonstrated a profound loyalty to the United States and its enduring constitutional principles.”

The April 3 remarks of Matthew Diaz upon receiving the Ridenhour Award may be found here.

The award ceremony and some of the background to it were described by Joe Conason in “A Truth Teller Who Deserves Justice,” Salon.com, April 4.

A longer treatment of the Diaz case appeared in “Naming Names at Gitmo” by Tim Golden, New York Times Magazine, October 21, 2007.

Remarkably, Diaz appears to be the first American ever convicted under the espionage statutes for disclosing classified information to another American rather than to a foreign person or government, according to a new study of espionage in America.

The Changing Face of Espionage in America

Financial incentives and external coercion play a diminishing role in motivating Americans to spy against the United States, according to a new Defense Department study (pdf). But divided loyalties are increasingly evident in recent espionage cases.

“Two thirds of American spies since 1990 have volunteered. Since 1990, spying has not paid well: 80% of spies received no payment for espionage, and since 2000 it appears no one was paid.”

“Offenders since 1990 are more likely to be naturalized citizens, and to have foreign attachments, connections, and ties, and therefore they are more likely to be motivated to spy from divided loyalties.” Even so, the majority (65%) of American spies are still native born.

The changing circumstances surrounding the practice of espionage today require revision of the existing espionage laws, the study concludes.

“Recent espionage cases involving stateless transnational groups illustrate the strain of how to sort out and apply … ambiguities in the current [espionage] statutues.”

The new study was performed for the Defense Personnel Security Research Center, with the support of the Counterintelligence Field Activity (which reportedly may soon be dismantled). A copy was obtained by Secrecy News.

See “Changes in Espionage by Americans: 1947-2007,” by Katherine L. Herbig, Defense Personnel Security Research Center, March 2008.

More Support for State Secrets Reform

Pending legislation to reform the use of the state secrets privilege received a wave of support last week from numerous public interest, professional and civil liberties organizations.

While the bill is opposed by the Attorney General, it received strong endorsements from the American Bar Association, the American Civil Liberties Union, the Brennan Center for Justice, the Center for Democracy and Technology, the Electronic Frontier Foundation, the Constitution Project and others. See their statements and responses to the Attorney General’s March 31 letter on the subject here.

Gov’t Opposes Testimony of ISOO’s Leonard in AIPAC Case

Prosecutors in the case of two former AIPAC lobbyists who are charged with unlawful transmission of classified information last week asked a court to prevent the former director of the Information Security Oversight Office, J. William Leonard, from testifying for the defendants.

Mr. Leonard, who was the government’s senior classification policy authority for the past five years until his recent retirement, should not be allowed to assist the defense, prosecutors said. There are legal and ethical prohibitions against his testimony, according to the prosecution, particularly since he once had a discussion with prosecutors about the case.

“Mr. Leonard is subject to a permanent restriction on appearing as an expert witness on behalf of any other party in this matter except the United States,” prosecutors argued in their March 31 motion (pdf).

The prosecution move highlights the awkward fact that several of the government’s own most distinguished classification experts are siding with the defense in this case.

Another former ISOO director, Steven Garfinkel, has also been named as a potential expert witness for the defense.

Perhaps with that prospect in mind, the government motion stated that “The statutory restrictions enumerated herein may likewise apply to other expert witnesses the defense intends to present.”

The government motion was first reported by the Jewish Telegraphic Agency in “Gov’t: Bar Classification Czar,” April 4.

The OLC Torture Memo as a Failure of the Classification System

The Justice Department Office of Legal Counsel memo on interrogation of enemy combatants that was declassified this week “exemplifies the political abuse of classification authority,” Secrecy News suggested yesterday.

J. William Leonard, the nation’s top classification oversight official from 2002-2007, concurred.

“The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.

“The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”

Beyond that crucial fact, the binding technical requirements of classification were ignored.

Thus, he explained: There were no portion markings, identifying which paragraphs were classified at what level. The original classifier was not identified on the cover page by name or position. The duration of classification was not given. A concise basis for classification was not specified. Yet all of these are explicitly required by the President’s executive order on classification.

“It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.

“All too often, government officials simply assert classification. To enjoy the legal safeguards of the classification system, you need to do more than that. Those basic, elemental steps were not followed in this instance.”

“Also, for the Department of Defense to declassify a Department of Justice document,” as in this case, “is highly irregular,” Mr. Leonard said.

(The DoD declassifier mistakenly cited “Executive Order 1958″ on the cover page of the declassified memorandum. The correct citation is “Executive Order 12958, as amended.”)

Violations of classification policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded. Nevertheless, such classification violations are significant because they enabled the Administration to pursue its interrogation policies without independent scrutiny or accountability.

“To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ‘secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard.

“There is no information contained in this document which gives an advantage to the enemy,” he said. “The only possible rationale for making it secret was to keep it from the American people.”

Reforming the State Secrets Privilege: Two Views

Attorney General Michael B. Mukasey this week expressed strong Bush Administration opposition (pdf) to pending legislation that would regulate the use of the state secrets privilege in civil litigation.

The proposed “State Secrets Protection Act” (S.2533), the Attorney General wrote in a detailed seven-page letter, “would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.”

In short, “We strongly oppose this legislation.”

See the Attorney General’s March 31, 2008 letter to Sen. Patrick J. Leahy, chair of the Senate Judiciary Committee.

At the request of Senator Edward M. Kennedy, an original sponsor of the State Secrets Protection Act, Attorney General Mukasey’s criticisms of the bill were reviewed and rebutted by Louis Fisher, the constitutional law expert at the Law Library of Congress.

“According to Attorney General Mukasey, Presidents are entitled to unilaterally define the scope of their powers under Article II and no other branch has any authority to impose limitations,” Dr. Fisher wrote (pdf).

“The Constitution has been interpreted in that manner at times by some Presidents, but never successfully. Such a reading would eliminate the checks and balances that are fundamental to the U.S. Constitution.”

See this April 2, 2008 memorandum prepared by Louis Fisher.

The War Powers Resolution, and More from CRS

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

“The War Powers Resolution: After Thirty-Four Years,” updated March 10, 2008.

“The Federal Grand Jury,” updated January 22, 2008.

“Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power,” updated February 1, 2008.