Posts from July, 2008

Rendition, Ordinary and Extraordinary

“Rendition” refers to the transfer of a detained person to another jurisdiction for trial. For most purposes it is the same thing as extradition.

“Extraordinary rendition,” however, leaves out the trial. It means the transfer of a prisoner elsewhere for purposes of interrogation and, too often, torture.

“Putting ‘extraordinary’ in front of rendition changes the meaning fundamentally,” wrote constitutional scholar Louis Fisher in a comprehensive new law review article on the subject (pdf).

“Rendition operates within the rule of law; extraordinary rendition falls outside. Rendition brings suspects to federal or state court; extraordinary rendition does not.”

See “Extraordinary Rendition: The Price of Secrecy” by Louis Fisher, American University Law Review, volume 57, number 5, June 2008.

There are intermediate cases. When Israeli agents kidnapped the Nazi war criminal Adolf Eichmann from Argentina in 1960, it was an act of abduction rather rendition. Yet Eichmann was taken to trial with full legal process.

“Because there was no extradition treaty between Israel and Argentina, the U.N. Security Council asked Israel to pay reparations to Argentina, and Israel complied,” Fisher recalled.

Secrecy in the Law Reviews

There has been a surge of publication of papers on official secrecy, national security classification and freedom of information in law reviews and other professional legal journals. Not all are equally original in their analysis or compelling in their conclusions, but they typically provide a scholarly perspective on matters of secrecy policy, and they often include valuable source citations.

Some of the more interesting new law review articles that have come to our attention are these (mostly pdf):

“Congressional Access to National Security Information” by Louis Fisher, Harvard Journal on Legislation, Volume 45, No. 1, Winter 2008.

“Classified Information Leaks and Free Speech” by Heidi Kitrosser, University of Illinois Law Review, 2008, Issue 3.

“The Chilling of Speech, Association, and the Press in Post-9/11 America” (multiple papers and conference presentations), American University Law Review, June 2008.

“Government Lawyers and Confidentiality Norms” By Kathleen Clark, Washington University Law Review, 2008.

“Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege” by D. A. Jeremy Telman, Temple Law Review, 2007.

“‘Nothing Is So Oppressive as a Secret’: Recommendations for Reforming the State Secrets Privilege” by Emily Simpson, Temple Law Review, 2007.

“Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental, Health, and Safety Law,” by Mary L. Lyndon, University of Colorado Law Review, Volume 78, Issue 2, Spring 2007 (not online).

Congress Questions Secret Directives, Weakly

By classifying some recent Presidential directives on homeland security and restricting their disclosure, the Bush Administration has impeded their effective implementation, the Senate Appropriations Committee reported last month.

“The Committee notes the administration has released several Homeland Security Presidential Directives over the last year, including ones concerning the deterrence of the use of improvised explosive devices and efforts to enhance cyber security.”

“However, in both cases these documents are classified, putting them out of the reach of many of the people responsible for their implementation,” the Appropriations Committee said in its June 23 report on the 2009 Homeland Security Appropriations Act.

But instead of taking corrective action, the Committee could only beg the Administration to reconsider:

“While making determinations about the classification of sensitive materials is ultimately the responsibility of the executive branch, the Committee strongly urges the agencies responsible to re-examine their policies to be certain that the public good would not be better served if these documents and the information contained in them were more accessible to appropriate State, local, and private sector officials.”

This is an anemic, self-defeating approach to congressional oversight. It imposes no requirements and makes no demands. The Committee could have directed the Administration to prepare unclassified versions of the directives for broad dissemination. It could have asked the agencies to justify the directives’ secrecy with a report on the asserted basis for continued classification, including the costs and benefits involved. The Committee could even have mandated disclosure of key elements of the classified directives. But instead it merely “urged” reexamination, a rhetorical posture that cannot be expected to generate a meaningful response from a rule-driven bureaucracy.

Worst of all, the Committee preemptively surrendered its own authority with a mistaken declaration that classification “is ultimately the responsibility of the executive branch.”

Though the Committee seems to have forgotten it, Congress has its own role to play in defining the national security classification system.

Coincidentally, that point was stressed in a court ruling last week.

“The authority to protect national security information is neither exclusive nor absolute in the executive branch,” wrote Judge Vaughan R. Walker of the Northern District of California in a July 2 opinion (pdf) which affirmed the Foreign Intelligence Surveillance Act as the only legal mechanism for domestic intelligence surveillance.

“When Congress acts to contravene the president’s authority, federal courts must give effect to what Congress has required,” he found (at page 22).

If there were any doubt about that, he noted, “many Congressional enactments regulate the use of classified materials by the executive branch,” including some statutes that restrict disclosure of information or impose safeguarding requirements, and other statutes that require disclosure of information outside of the executive branch.

“Congressional regulation of the use of classified information by the executive branch… is therefore well-established,” Judge Walker concluded.

FBI Headquarters Not Cleared for Classified Intelligence

Note: This story was updated in Intelligence is Secure at Hoover Building, FBI Says.

The Federal Bureau of Investigation, which is part of the U.S. intelligence community, has the lead responsibility for domestic surveillance of foreign intelligence and suspected terrorist targets.

So it seems like a rather crippling defect that the J. Edgar Hoover Building, the FBI headquarters in Washington, DC, cannot satisfy government standards for storage and use of classified intelligence records.

“The Hoover Building does not meet the Interagency Security Committee’s criteria for a secure Federal facility capable of handling intelligence and other sensitive information,” the Senate Appropriations Committee observed in a new report on the 2009 Commerce, Justice and State Appropriations bill.

“The Committee finds these conditions unacceptable and directs the Government Accountability Office [GAO] to review the Hoover Building and associated off-site locations, and provide a analysis of the FBI’s ability to fulfill its mission and security requirements under the present circumstances,” the report said.

The FBI is in the process of constructing a Central Records Complex outside of Washington, DC. When completed, it will provide secure, centralized storage for classified intelligence, consistent with the security requirements of Director of Central Intelligence Directive (DCID) 6/9 and related guidelines.

Cluster Munitions, and More from CRS

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

“U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress,” updated June 26, 2008.

“Department of Justice (DOJ) Appropriations for FY2008 and FY2009,” June 10, 2008.

“A Brief History of Veterans’ Education Benefits and Their Value,” June 25, 2008.

“Veterans Affairs: Historical Budget Authority, Fiscal Years 1940 through 2007,” June 13, 2008.

“Cluster Munitions: Background and Issues for Congress,” June 27, 2008.

Jesse Helms on Secrecy

The late Senator Jesse Helms, who died on July 4, was an arch-conservative opponent of civil rights legislation, arms control treaties and other liberal causes. Though none of the obituaries mentioned it, he was also an outspoken critic of government secrecy.

“This government is shot through with willy-nilly applications of secrecy,” he complained in January 1995 at the first meeting of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), of which he was a member.

“I’ve been fussing for years about the application of secrecy on just about every document in this town,” he said then.

Senator Helms co-sponsored secrecy reform legislation based on the recommendations of the Moynihan Commission. That legislation was not enacted. But as chairman of the Senate Foreign Relations Committee, he helped pass legislation to require disclosure of most U.S. arms sales to foreign governments, which was signed into law.

“Secrecy all too often … becomes a political tool used by Executive Branch agencies to shield information which may be politically sensitive or policies which may be unpopular with the American public,” he testified at a Senate hearing in 1997. “Worse yet, information may be classified to hide from public view illegal or unethical activity.”

“On numerous occasions I, and other Members of Congress, have found the Executive Branch to be reluctant to share certain information, the nature of which is not truly a ‘national secret,’ but which would be potentially politically embarrassing to officials in the Executive Branch or which would make known an illegal or indefensible policy,” Sen. Helms said.

DNI Assigned to Oversee All Security Clearance Policy

The Director of National Intelligence will oversee security clearance investigations and related policies on access to classified information for all federal agencies, according to an executive order issued yesterday by President Bush.

The move appears to significantly augment the authority of the DNI since it extends his reach to personnel policies and security clearances that are unrelated to intelligence information.

“The Director of National Intelligence … shall direct the oversight of investigations and determinations of eligibility for access to classified information or eligibility to hold a sensitive position made by any agency,” the order stated.

(A “sensitive position,” as defined in a 1953 executive order, is one whose “occupant … could bring about, by virtue of the nature of the position, a material adverse effect on the national security.”)

The DNI was made “responsible for developing uniform and consistent policies and procedures” for security clearance investigations and adjudications government-wide.

The new executive order also reiterates the familiar requirement of security clearance “reciprocity,” i.e. that “background investigations and adjudications shall be mutually and reciprocally accepted by all agencies.”

Illustrating why this requirement has never been satisfactorily implemented, the new order firmly prohibits agencies from imposing their own additional security requirements but then, in the very same sentence, allows exceptions for polygraph testing or, more generally, “to protect national security.”

See “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information,” Executive Order 13467, June 30, 2008.

Court Invalidates Detainee’s “Enemy Combatant” Status

A federal appeals panel found that the designation of a Chinese detainee held in U.S. custody as an “enemy combatant” was “not valid” (pdf) because the classified evidence offered by the government was not sufficient to sustain the charge.

In the first legal challenge to enemy combatant status, Huzaifa Parhat, an ethnic Uighur, admitted to being an enemy of the People’s Republic of China but denied any connection with al Qaida or the Taleban and specifically denied that he was an enemy of the United States.

Military prosecutors argued that he qualified as an enemy combatant because he was “affiliated” with military forces that were “associated” with al Qaida and the Taleban.

In a straightforward but nevertheless thrilling exercise of judicial authority, judges said that the classified evidentiary basis for that argument could not be independently validated and was therefore inadequate.

“We must be able to assess the reliability of that evidence ourselves,” the judges wrote.

“The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded,” the court said.

Adding a literary flourish, the judges wrote that “the fact that the government has ‘said it thrice’ does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (‘I have said it thrice: What I tell you three times is true.’).”

Likewise, they wrote, “the government insists that the statements made in the [classified evidentiary] documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.”

In a court of law, the prosecution must prove its case and not simply assert it, the judges explained.

“We [...] reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government’s charges,” the ruling stated.

The court also denied a government request to block public disclosure of certain unclassified information in the trial record, including material marked “Law Enforcement Sensitive.” (The new ruling is apparently the first to cite President Bush’s memorandum on “controlled unclassified information” that was published on May 9, 2008.)

Significantly, the court rejected the government’s attempt “unilaterally to determine whether information is ‘protected’.” Sealing the judicial record, the judges said, is a decision for the court to make.

“Without an explanation tailored to the specific information at issue, we are left with no way to determine whether it warrants protection — other than to accept the government’s own designation. This we cannot do.”

Instead, the government was directed to file a new motion “accompanied by pleadings specifically explaining why protected status is required for the information that has been marked. Opposing counsel may file a response, and the government may file a reply, pursuant to our usual rules.”

The classified June 20, 2008 ruling in Huzaifa Parhat v. Robert M. Gates was redacted and approved for publication on June 30.

Iran’s Nuclear Program, and More from CRS

Noteworthy new reports from the Congressional Research Service include the following (all pdf). (These reports have also been made available on OpenCRS.)

“Iran’s Nuclear Program: Status,” June 23, 2008.

Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus,” June 16, 2008.

“Status of Forces Agreement (SOFA): What Is It, and How Might One Be Utilized In Iraq?,” June 16, 2008.

“The National Bio- and Agro-Defense Facility: Issues for Congress,” updated May 19, 2008.