Posts from June, 2008

Reporter Bill Gertz Subpoenaed to Testify on Sources

Washington Times reporter Bill Gertz was subpoenaed by a federal court last month to testify regarding his sources for a 2006 story relating to alleged Chinese espionage.

While Mr. Gertz has been a prolific reporter of classified information for two decades and has even republished classified documents in his books, his current legal entanglement arises not from national security secrecy but from grand jury secrecy.

A court found that Mr. Gertz had disclosed secret grand jury information pertaining to the trial of Chi Mak and others who were accused and later convicted of illegal exports of defense technology to China.

“During the course of proceedings in this case, Washington Times reporter Bill Gertz authored a May 16, 2006 article that revealed secret information before a grand jury,” wrote Judge Cormac J. Carney in a May 1, 2008 Order (pdf).

Judge Carney noted that the Government had conducted a year-long investigation of the matter and interviewed “over 500 persons of interest” without being able to identify the source of the grand jury leak.

“Accordingly, the Court finds it necessary to subpoena Mr. Gertz to testify regarding the identity of the source that provided him with the grand jury information,” the Judge wrote.

In a robustly argued response (pdf) on June 5, attorneys for Mr. Gertz urged the Court to withdraw the subpoena.

Mr. Gertz’s story, they said, had not actually revealed “matters occurring before the Grand Jury.” Rather, he had reported on the intentions of prosecutors and relied on non-Grand Jury sources, including public statements by prosecutors. In support of their position, they cited a ruling in U.S.A. v. Rosen (the “AIPAC” case) in which the Court had declined to find a violation of grand jury secrecy under somewhat similar circumstances.

“There is simply no evidence contained in the record proving, or even tending to prove, that actual Grand Jury information was disclosed to Mr. Gertz.”

Along with other factual and legal arguments, Mr. Gertz’s attorneys also asserted a First Amendment privilege on his behalf. The subpoena, including the command for Mr. Gertz to testify, “is unreasonable and oppressive,” they concluded.

Mr. Gertz had been ordered to appear in court in Santa Ana, California on Friday, June 13, but that date has been postponed.

The subpoena of Mr. Gertz as well as his attorneys’ response were both first reported by Josh Gerstein in the New York Sun on May 30 and June 6.

Mr. Gertz is represented by attorneys Siobhan Cullen, Allen Farber, and Charles Leeper of Drinker, Biddle & Reath. That law firm is probably famous for other things, but it is best known to Secrecy News for representing the plaintiffs in the 1953 Reynolds case that established the state secrets privilege in the U.S. Supreme Court, and also for attempting to re-open the case fifty years later on grounds that a fraud had been committed upon the Court.

The Willard Report on Unauthorized Disclosures (1982)

“Leak investigations do not focus on the receiving journalist for a variety of reasons,” according to a 1982 government report (pdf) on unauthorized disclosures of classified information.

One of those reasons is that “journalists are unlikely to divulge their sources in response to a subpoena for documents or testimony before a grand jury, and contempt sanctions against journalists in other types of cases have not been effective.”

In other words, according to this analysis, the traditional refusal of journalists to cooperate with leak investigations protects them in the long run by discouraging government officials from undertaking further investigations.

The 1982 report, known as the “Willard Report” after its chairman, Richard K. Willard, is a minor classic of cold war secrecy. Though frequently cited in the literature, it has not been available online until now (thanks to S).

See “Report of the Interdepartmental Group on Unauthorized Disclosures of Classified Information” (the “Willard” Report), March 31, 1982.

Reform of the State Secrets Privilege

“In too many cases, claims of state secrets have succeeded in keeping important cases out of court entirely or preventing courts from considering evidence vital to the outcome of a case,” said Rep. John Conyers, Chairman of the House Judiciary Committee, at a January 29 hearing on “Reform of the State Secrets Privilege.” The record of that hearing has just been published.

In one recent case, a federal judge did what others have often failed to do in state secrets cases, which is to critically examine the basis for the assertion of the state secrets privilege.

Judge Sidney I. Schenkier of the Northern District of Illinois conducted hearings as well as in camera review of documents that the government insisted were protected by the state secrets privilege. In an April 16, 2008 ruling (pdf) in the case of M. Afikur Rahman v. Michael Chertoff, he rejected some of the government’s privilege claims and affirmed others.

The 1953 Reynolds case that established the Supreme Court precedent on the state secrets privilege was examined most recently by writer Barry Siegel in the new book “Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets” (Harper Collins, June 2008).

DIA Reports on Loss of Jose Padilla Interrogation Video

In a report to the National Archives (pdf) released last week, the Defense Intelligence Agency (DIA) said it could not locate a recording of the final interrogation of Jose Padilla, the American citizen who was designated an enemy combatant and later convicted of conspiracy to commit murder.

The missing Padilla interrogation video was first reported in February 2007 by Michael Isikoff and Mark Hosenball in Newsweek. Their story triggered a legal inquiry by the National Archives, which advised DIA that the disposal of such a record is “not authorized.”

DIA reported back to the National Archives in December 2007 in a terse four-paragraph letter concerning the loss.

Unlike the case of the CIA’s reported destruction of videotaped interrogations of al Qaeda suspects, DIA did not say that the Padilla tape was deliberately destroyed, only that it could not be found.

A government official with some knowledge of the events told Secrecy News that he “heard” the Padilla DVD had been transferred from DIA to CIA, which may have destroyed it. But there is no independent evidence of that, and it may not be true.

What is true is that DIA and the National Archives failed to establish exactly how the loss of the Padilla interrogation recording actually occurred.

An agency that unlawfully or accidentally destroys a record is required by regulation (36 C.F.R. 1228.104) to provide “a statement of the exact circumstances surrounding the alienation, defacing, or destruction of the records.”

But in its report, DIA did not explain “the exact circumstances” of the loss and the National Archives did not press the matter.

The exchange of correspondence between DIA and the Archives regarding the Padilla interrogation video was released to the Federation of American Scientists last week under the Freedom of Information Act.

House Bill Embraces Controlled Unclassified Info

Rep. Jane Harman (D-CA) and several colleagues last week introduced a bill that endorses and builds upon the recent White House policy statement on “controlled unclassified information” (CUI), which is information that though not classified is subject to restricted access.

Although entitled “The Improving Public Access to Documents Act,” it is far from clear that the new bill would serve that purpose. Rather, it would “require the Secretary of Homeland Security to develop and administer policies, procedures, and programs to promote the implementation of the Controlled Unclassified Information Framework.”

While well-intentioned, the bill seems premature at best.

From Secrecy News’ perspective, it is tactically unwise to lock into statute an executive branch “framework” that still remains largely undefined and that may be subject to significant modification in the course of its projected five-year implementation period. The CUI Office at the National Archives that is supposed to develop the implementing regulations referenced in the bill does not even have its own funding this year, and has also missed the funding cycle for next year.

Among other questionable features (and some positive ones), the bill regrettably endorses the executive branch view of the Freedom of Information Act as the proper channel for public access to agency information on homeland security and related topics.

Thus, the bill says, “The Department [of Homeland Security] should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act’).”

This is not a “presumption” — disclosure of non-exempt information pursuant to FOIA is already required by law — and it would not “improve public access.” To the contrary, by presenting disclosure under FOIA as the primary alternative to classification or control, the bill would place an impossible burden on the FOIA process, and would diminish agency responsibility to unilaterally disclose homeland security information that has not been formally requested.

A hearing on the new bill will be held before the House Homeland Security Subcommittee on Intelligence on June 11.

Presidential Directive Orders Sharing of Biometric Data

The White House last week issued a National Security Presidential Directive (NSPD-59) to provide a framework for government agencies to collect, maintain and share biometric data such as fingerprints and other physiological or behavioral characteristics of suspected terrorists.

“The ability to positively identify those individuals who may do harm to Americans and the Nation is crucial to protecting the Nation,” the directive states.

“Many agencies already collect biographic and biometric information in their identification and screening processes. With improvements in biometric technologies, and in light of its demonstrated value as a tool to protect national security, it is important to ensure agencies use compatible methods and procedures in the collection, storage, use, analysis, and sharing of biometric information.”

“Through integrated processes and interoperable systems, agencies shall, to the fullest extent permitted by law, make available to other agencies all biometric and associated biographic and contextual information associated with persons for whom there is an articulable and reasonable basis for suspicion that they pose a threat to national security.”

“The Director of the Office of Science and Technology Policy,” who hasn’t been heard from much lately, “shall coordinate executive branch biometric science and technology policy.”

The new directive on “Biometrics for Identification and Screening to Enhance National Security” was issued on June 5, 2008 as both National Security Presidential Directive 59 and Homeland Security Presidential Directive 24.

Energy Dept is “Committed” to Improving Declassification

The Department of Energy has responded favorably (pdf) to the recent recommendations of the Public Interest Declassification Board (PIDB) for improving the declassification of historical records.

In a January 29, 2008 directive, President Bush had instructed agencies to provide comments on the December 2007 PIDB report on “Improving Declassification” (pdf). DOE responded in a newly disclosed April 21 memorandum addressed to national security adviser Stephen J. Hadley.

The PIDB report “offers many sound recommendations,” wrote Energy Secretary Samuel W. Bodman, and “DOE is committed to meeting the challenges of declassification.”

In fact, DOE endorsed most of the dozens of specific recommendations presented by the PIDB, though it also opposed several. In particular, DOE expressed support for establishment of a National Declassification Center that would coordinate agency declassification programs and expedite the declassification process. DOE opposed a recommendation to treat certain nuclear weapons-related information known as Formerly Restricted Data as regular classified information.

The DOE memorandum also expressed strong support for creation of a database of declassification activity that would be made publicly accessible, a proposal that has been advocated by the Federation of American Scientists.

“The establishment of a centralized database would provide a tremendous service to the public by eliminating the requirement to search multiple agency databases to find all relevant declassified documents in a topic of interest,” DOE wrote.

Not only that, DOE said, “an electronic version of the entire document should be made available to the public rather than just the information required to request the document.”

The DOE memorandum includes some eccentric views, perhaps to make sure that readers are paying attention. Thus, DOE refuses to rule out the possibility of prosecuting someone for possessing records that were legally obtained from the government.

“DOE agrees that prosecuting members of the public for maintaining, using, or disseminating a record or information contained in a record that they had lawfully obtained from any agency of the Federal Government should be rare.”

“However, expressly prohibiting such action in an Order or statute is not advisable,” DOE said, since legal action might be necessary in order “to prevent the proliferation of information that could be particularly damaging to the national security (e.g., nuclear weapons design information).”

Overall, the DOE response to the PIDB recommendations provides a constructive basis for further policy development in anticipation of revisions to national security information policy in the next Administration.

Secrecy News obtained a copy of the DOE response under the Freedom of Information Act. Requests for other agency responses to the PIDB report are still pending.

Creation of a government-wide declassification database and other possible reforms to classification and declassification policy were discussed by myself and others in a July 12, 2007 hearing before a subcommittee of the House Intelligence Committee. The record of that hearing, titled “Classification of National Security Information,” has just been published.

Senate Committee Issues Reports on Pre-War Iraq Intel

The Senate Select Committee on Intelligence today finally released the final two reports of its investigation into pre-war intelligence on Iraq.

“Before taking the country to war, this Administration owed it to the American people to give them a 100 percent accurate picture of the threat we faced,” said Senator Jay Rockefeller in a news release.

“Unfortunately, our Committee has concluded that the Administration made significant claims that were not supported by the intelligence,” Rockefeller said. “In making the case for war, the Administration repeatedly presented intelligence as fact when in reality it was unsubstantiated, contradicted, or even non-existent. As a result, the American people were led to believe that the threat from Iraq was much greater than actually existed.”

A summary of the report’s conclusions, which would have been most useful about four years ago, is presented here, with links to the newly released reports.

JASON Warns of Threat from Sleeping Enemies

The Pentagon should “monitor enemy activities in sleep research” says a newly disclosed report (pdf) from the elite defense science advisory panel known as JASON.

The JASONs were investigating the potential for U.S. adversaries “to exploit advances in Human Performance Modification, and thus create a threat to national security.”

Their report examined “the present state of the art in pharmaceutical intervention in cognition and in brain-computer interfaces, and considered how possible future developments might proceed and be used by adversaries.”

Among their findings was the underappreciated significance of sleep and the possibility of a “sleep gap” (a term not used in the report).

“The most immediate human performance factor in military effectiveness is degradation of performance under stressful conditions, particularly sleep deprivation.”

“If an opposing force had a significant sleep advantage, this would pose a serious threat.”

Fortunately, “the technical likelihood of such a development is small at present.” Just to be safe, however, the scientists recommended that the Pentagon “Monitor enemy activities in sleep research, and maintain close understanding of open source sleep research.”

In general, the JASONs went on to observe, “the publicity and scientific literature regarding human performance enhancement can easily be misinterpreted, yielding incorrect conclusions about potential military applications.”

See “Human Performance,” JASON, March 2008. Selected other reports from JASON are available here.

Obama Introduces New Transparency Legislation

On the same day that he became the presumptive Democratic nominee for President, Sen. Barack Obama introduced new legislation to expand public access to information about government spending.

The bill (pdf), known as “The Strengthening Transparency and Accountability in Federal Spending Act of 2008,” was crafted on a bi-partisan basis with Sen. Tom Coburn (R-OK).

Sen. John McCain, the Republican presidential candidate, is also an original co-sponsor of the bill, as is Sen. Tom Carper (D-DE).

The new bill would build upon and improve previous efforts by Senators Obama and Coburn to provide public access to federal grant and contract information through the web site. Among other things, it would require copies of each federal contract and details of the bidding process to be published online.

The provisions of the bill were outlined in a joint press release on June 3.

“People from every State in this great Nation sent us to Congress to defend their rights and stand up for their interests,” Sen. Obama said in a prepared floor statement. “To do that we have to tear down the barriers that separate citizens from the democratic process and to shine a brighter light on the inner workings of Washington. This bill helps to shine that light.”

While most government agencies have cooperated with the contracting transparency requirements that were adopted in 2006, some intelligence agencies have dragged their heels in opposition. The Defense Intelligence Agency and the National Geospatial-Intelligence Agency, which used to disclose their unclassified contracts, actually withheld such information from the database in 2007 and 2008.