Posts from February, 2009

Court Favors Attorney’s Right to Classified Info

A federal court this week said that litigants have a First Amendment right to provide classified information to their attorneys when doing so is necessary to protect their interests.  The ruling is implicitly at odds with a common government practice of denying attorneys access to classified information in Freedom of Information Act cases, pre-publication review disputes, and other matters.

There is a “First Amendment right to share [classified] information with an attorney when such sharing is necessary for an attorney to advise his client of his rights,” wrote Judge Gladys Kessler (pdf) of the DC District Court.

The ruling came in a lawsuit brought by former Defense Intelligence Agency employee Anthony Shaffer against the DIA in connection with the controversial intelligence program known as Able Danger.  DIA sought to bar Shaffer from providing classified information about the program to his attorney, Mark S. Zaid, even though he holds a security clearance.  Mr. Zaid challenged the denial, and the court found merit in his complaint.

“Without knowing all that his client, and the Defendants, know, Plaintiff Shaffer’s counsel cannot be prepared to adequately represent his client’s interests,” Judge Kessler concluded.

Executive branch agencies have frequently barred attorneys from access to classified information in civil litigation, effectively driving a wedge between the litigant and his counsel, particularly in disputes involving prepublication review of manuscripts that are said to contain classified information.  “I have faced this issue numerous times,” Mr. Zaid said.

The new ruling may make it harder to continue that practice.  (See more from the Legal Times blog here.)

Focus on Fusion Centers

The Department of Homeland Security has produced a new “Concept of Operations” (pdf) to define how the Department will support and oversee the network of dozens of “fusion centers” that have been established around the country.  The fusion centers are intended to promote a collaborative approach among federal, state and local authorities to combating terrorism and criminal activity.

Preparation of the new DHS Concept of Operations was required by the “9/11 Commission Recommendations Act of 2007.”  The document has not been formally released, but a copy was obtained by Secrecy News.  See “Interaction with State and Local Fusion Centers: Concept of Operations,” December 2008.

The Concept of Operations is programmatic rather than descriptive.  It explains the intended operation of the fusion center system, not how (or whether) it works in practice– a topic on which there are conflicting views.

“Despite their lofty claims, federal officials are misleading you if they have caused you to believe that fusion centers are actually ‘fusing’ any data, that interdepartmental systems in DOJ, DHS, or DOD are integrating anything but inconsequential records, or that nationwide networks like N-DEX and HSDN are systematically transporting data that is being used by state and local police departments,” said former U.S. Attorney John McKay (pdf) at a September 24, 2008 hearing.  “If you accept these assertions at face value, you will be misinformed.”

From another perspective, there is “not enough terrorism” to justify the creation and maintenance of the fusion center system. “There is, more often than not, insufficient purely ‘terrorist’ activity to support a multi-jurisdictional and multi-governmental level fusion center that exclusively processes terrorist activity,” according to Sacramento police officer Milton Nenneman.  (“Fusion Centers Face ‘Insufficient’ Terrorist Activity,” Secrecy News, June 3, 2008).

Others take a more favorable view.  “I would say that fusion centers have emerged as what may be the most significant change in the structural landscape of criminal intelligence in at least the past 25 years,” said Russell M. Porter (pdf), director of the Iowa State fusion center.

Some of these issues were addressed in a recently published Senate hearing record.  See “Focus on Fusion Centers: A Progress Report,” hearing before the Senate Homeland Security and Governmental Affairs Committee, April 17, 2008.

The most widely shared official view seems to be that fusion centers offer significant advantages, especially to law enforcement agencies, but that they are still far from fulfilling their potential or optimizing their utility.  A similar view was expressed recently by the DHS Office of Inspector General in “DHS’ Role in State and Local Fusion Centers is Evolving” (pdf), December 10, 2008.

The ACLU discussed its view of “What’s Wrong with Fusion Centers” in December 2007 (with a July 2008 update).

The Electronic Privacy Information Center provides related background, resources and critical commentary here.

Various Items

The release of President Obama’s first Presidential Policy Directive on “Organization of the National Security System” was reported by Karen DeYoung in the Washington Post and by Josh Gerstein in Politico.

“Secretary of Defense Robert Gates lifted a blanket ban on news media coverage of the honor guard ceremonies that mark the return of military casualties from abroad,” the National Security Archive noted.

The unreleased Bush Administration documents that are most coveted by reporters, civil libertarians, and others are discussed in “Opening the Files on Bush’s Secrets” by Jon Wiener in The Nation, March 16, 2009.

A new Army Field Manual on “Electronic Warfare in Operations” (pdf) has been issued as part of “an overall effort by the Army to rebuild its internal Electronic Warfare capability.”  It also serves as a useful primer on the subject.  The new Field Manual, FM 3-36, has been approved for unrestricted release.

A new trial date has been set in the “AIPAC Case,” in which two former employees of the American Israel Public Affairs Committee are charged with improperly receiving and transmitting classified national defense information.  The new date is  May 27, 2009.

Presidential Records, and More from CRS

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

“Presidential Records: Issues for the 111th Congress,” February 17, 2009.

“F-35 Lightning II Joint Strike Fighter (JSF) Program: Background, Status, and Issues,” updated February 17, 2009.

“Strategic Arms Control After START: Issues and Options,” updated February 12, 2009.

“Herring v. United States: Extension of the Good-Faith Exception to the Exclusionary Rule in Fourth Amendment Cases,” February 2, 2009.

“U.S. Motor Vehicle Industry: Federal Financial Assistance and Restructuring,” January 30, 2009.

“India-U.S. Relations,” updated January 30, 2009.

“Compulsory DNA Collection: A Fourth Amendment Analysis,” updated January 23, 2009.

AIPAC Appeals Court Rules Against Prosecutors

A federal appeals court dealt another setback to prosecutors in the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged under the Espionage Act with improperly receiving and transmitting national defense information.  The appeals court rejected (pdf) a pre-trial appeal by the prosecution and affirmed the lower court rulings of Judge T.S. Ellis, III that define which classified information may be introduced at trial.

The appeals court said that the lower court had correctly assessed the relevance of two documents that the defense wished to introduce, referred to as the “FBI Report” and the “Israeli Briefing Document,” and that it had properly devised substitutions for certain classified information in the documents so that they may be presented at trial.

More importantly, the new ruling left undisturbed Judge Ellis’ ground-breaking interpretation of the procedural requirements of the Espionage Act.  That August 2006 interpretation stated that in order for the Espionage Act to be constitutional, it must require prosecutors to show that the defendants possessed a series of “culpable mental states” and that they knowingly chose to violate the law.  (See “Ruling in AIPAC Case Interprets Espionage Act Narrowly,” Secrecy News, February 20, 2007.)  This imposes a substantial, perhaps insurmountable burden of proof that the prosecutors must meet in order to prevail.

The new ruling counts squarely as a win for the defense.  But it also includes a hint of support for the prosecutors’ view that the lower court has made the Espionage Act too difficult to prosecute.

“We are … concerned by the potential that [Judge Ellis' August 2006 ruling (pdf)] imposes an additional burden on the prosecution not mandated by the governing statute,” the appeals court said in a strikingly ambivalent footnote (footnote 8).  That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.

Prosecutors have not yet indicated how they will respond to the new ruling.  A new trial date may be determined at a status hearing set for February 26.  (See additional coverage from the Washington Post, the Washington Times, the Jewish Telegraphic Agency, Forward, the Jerusalem Post, EmptyWheel, and Josh Gerstein.) (The trial has been rescheduled for June 2, 2009.)

Two New Series of Presidential Directives

The Obama Administration has launched two new series of Presidential directives on national security policy.  Presidential Policy Directives (PPDs) will define and direct the implementation of new presidential policies.  Presidential Study Directives (PSDs) will initiate policy review and development procedures.

Presidential Study Directive-1 (pdf), issued February 23, 2009, is entitled “Organizing for Homeland Security and Counterterrorism.”

The new PPD and PSD documents will succeed and replace directives known as National Security Presidential Directives (NSPDs) in the previous Administration.

Pentagon Officials Must Sign Budget Secrecy Pledge

Department of Defense officials who are involved in preparation of the Fiscal Year 2010 budget request are required to sign a non-disclosure agreement pledging not to divulge budget-related information to unauthorized persons.

A copy of the non-disclosure agreement, which was obtained by Defense News, is available here (pdf).

In President Obama’s January 20, 2009 inaugural address, he promised a new degree of transparency specifically on budget matters:  “And those of use who manage the public’s dollars will held to account, to spend wisely, reform bad habits and do our business in the light of day, because only then can we restore the vital trust between a people and their government.”

But the light of day evidently does not extend to the budget development process, and perhaps it should not.

According to the text of the non-disclosure agreement, “a significant factor in the successful and proper preparation and completion of the President’s budget is the strict confidentiality that must be observed by all government participants…[and] a failure to comply with these confidentiality requirements may compromise the Administration’s ability to formulate and submit its budget.”

The unstated problem is that just as secrecy can be used to conceal a skewed policy agenda, selective disclosure of budget plans can also be abused to disrupt and distort budget development.  A controversial budgetary decision — such as the cancellation of a large, expensive program — could be undermined by early disclosure to industry lobbyists or others.  Preserving a degree of confidentiality around internal budget deliberations should, at least in theory, enable the Defense Department to present its best case, before its budget is subjected to the pressures of congressional and public scrutiny.

Defense Department regulations (such as DoD Directive 7045.14 [pdf], section 4.7) already prohibit the unauthorized disclosure of budget planning documents, so the policy itself is not new.  But the use of non-disclosure agreements to enforce and encourage compliance with the policy appears to be without precedent.

The new non-disclosure agreement was first reported in “DoD Officials Must Vow Secrecy on Budget” by John T. Bennett, Defense News, February 19, 2009.

“We’ll eliminate the no-bid contracts that have wasted billions in Iraq, and reform our defense budget so that we’re not paying for Cold War-era weapons systems we don’t use,” President Obama told Congress last night.

“Finally, because we’re also suffering from a deficit of trust, I am committed to restoring a sense of honesty and accountability to our budget. That is why this budget looks ahead ten years and accounts for spending that was left out under the old rules – and for the first time, that includes the full cost of fighting in Iraq and Afghanistan. For seven years, we have been a nation at war. No longer will we hide its price,” the President said.

OSC Views Upcoming North Korea Missile Test

North Korean officials confirmed on February 24 that their country is making preparations to launch a communications satellite, a move that would also constitute a new test of North Korean missile capabilities.

The DNI Open Source Center recently reviewed indications in the North Korean press (pdf) that preparations for a new missile test might be underway.  The OSC analysis (which pre-dated the official government confirmation of the test plans) also ventured an interpretation of the meaning of such a test.

“Almost certainly aware that a launch would be seen by the international community as provocative, Pyongyang appears to be deliberately raising the stakes, possibly the result of a calculus that envisions making headway in bilateral negotiations if it could present itself as an equal partner,” the OSC analysis said.

The OSC document has not been approved for public release, but a copy was obtained by Secrecy News.  See “Analysis: North Korean Media Campaign Signals Possible Near-Term Launch,” February 11, 2009.

Use of U.S. Armed Forces Abroad, 1798-2008

Hundreds of times in the last 210 years, the United States has deployed its military forces in conflicts abroad, although the U.S. has only formally declared war on eleven occasions.

A newly updated tabulation of those military deployments (pdf) — which do not include covert actions, disaster relief, or military training exercises — has recently been prepared by the Congressional Research Service.  A copy of the updated report was obtained by Secrecy News.

See “Instances of Use of United States Armed Forces Abroad, 1798-2008,” February 2, 2009.

Tunnels Beneath U.S. Borders Proliferate

Smugglers continue to construct tunnels beneath U.S. borders to transport drugs, illegal aliens and other contraband, according to an internal briefing prepared by a U.S. Northern Command Task Force.

Dozens of tunnels have been found in recent years, including some of remarkable sophistication, but it is likely that others remain undetected.  Overall, between 1990 and November 2008, 93 cross-border tunnels were discovered, a Task Force briefing slide stated (pdf).  Thirty-five of those were in California, fifty-seven in Arizona, and one in Washington State.

Some of the tunnels are primitive, “hand dug” affairs.  Others are the product of surprisingly ambitious and complex engineering projects.  In one extraordinary case in 2006 (pdf), a tunnel was discovered near Otay Mesa in California that began with a 90-foot deep vertical shaft on the Mexican side that gradually ascended to an exit point in California more than half a mile north.  Seven feet in height, electrical power and ventilation were provided throughout the tunnel.  “This tunnel was the longest yet found under the U.S. border,” the new briefing indicated.

The Task Force briefing, which has not been approved for public release, was inadvertently posted on the Internet by U.S. Northern Command before being withdrawn last week.  A summary slide from the briefing on “Tunnels Since 1990″ is here.

A descriptive tabulation of tunnels that were discovered between 2005 and early 2008 (based on data from the Department of Homeland Security) is available here.

At least six new tunnels were discovered in the first quarter of FY 2009, the Department of Homeland Security reported last December.

“The proliferation of tunnels dug underneath the border” may be “another unintended consequence of the border fencing” that has been erected along portions of the U.S.-Mexico border since 1990, a Congressional Research Service report (pdf) suggested last year.

Last week reported that the same Northern Command Task Force briefing was critical of Canadian immigration policies, which it said were too hospitable to potential terrorists.  See “DOD Officials See Terrorist Threat to America Brewing in Canada” by Sebastian Sprenger, March 20.