Posts from April, 2009

Appeals Court Curbs Use of State Secrets Privilege

The government’s use of the state secrets doctrine to shut down litigation on certain sensitive national security topics could be sharply curtailed by a new federal appeals court ruling (pdf).

The ruling came in a lawsuit brought by the ACLU against a company called Jeppesen DataPlan and filed on behalf of several plaintiffs who said they were unlawfully seized and transported with Jeppesen’s flight support to foreign countries where they were allegedly interrogated under torture in a CIA “extraordinary rendition” program.

The government sought to have the whole case thrown out because the subject matter, it said, is a “state secret.”  The lower court agreed, and dismissed the case last year.

But the appeals court said the state secrets privilege can only apply to “evidence” to be introduced in court, not to mere “information.”  The ruling sent the case back to the lower court with the instruction that “the government must assert the privilege with respect to secret evidence (not classified information)” and the lower court must then determine whether the privilege applies.  Only if the privilege is granted and if the privileged evidence is indispensable to the case could the case then be dismissed.

This would rule out the approach followed by the Bush and Obama Administrations in which they invoked the state secrets privilege to effectively block litigation on entire topical areas — shielding whole categories of information such as extraordinary rendition and warrantless surveillance — not just to prevent the introduction of specific evidence that they claimed was privileged.

In another crucial distinction, the court said that the fact that certain information is “classified” does not necessarily mean that it is “secret” for purposes of the privilege.

“A rule that categorically equated ‘classified’ matters with ‘secret’ matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process,” the court said.  (“Abuse of the Nation’s information classification system is not unheard of,” the court noted drily.)

Instead of relying solely on government classification claims, “courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the [state secrets] privilege.”

Such an independent judicial evaluation of official secrecy claims is precisely what critics of recent use of the state secrets privilege such as Louis Fisher and others have been asking for.  (The court cited a review of books by Fisher and Barry Siegel about the 1953 Reynolds case and the state secrets privilege that was published earlier this year in the New York Review of Books.)  Judicial review is also the centerpiece of the proposed “State Secrets Protection Act” that is pending in Congress.

The government has not yet indicated how it will respond to the ruling.

Official: “We’re Lazy About Classification”

There is practically a universal consensus that the national security classification system has become dysfunctional and counterproductive. (Just what to do about it remains up in the air–more on that shortly).

That consensus was articulated again earlier this month in a speech by Joan Dempsey, formerly a senior Pentagon intelligence official, a Deputy Director of Central Intelligence, and executive director of the President’s Foreign Intelligence Advisory Board, and now a vice president at Booz Allen and Hamilton.

“Ninety-five percent of what we do shouldn’t be classified at all, or it should be a much lower level of classification,” Ms. Dempsey said.  “We’re lazy about classification.  We call things secret that are not secret.  It hampers our ability to be effective as a community.  It costs the country billions of unnecessary dollars, and it doesn’t provide us one additional capability.  We’re our own worst enemy in that regard,” she said.

Ms. Dempsey spoke on April 14 at the University of Texas at Austin. Her talk, ironically enough, was entitled “Back to Black: An Argument for Removing U.S. Intelligence Activities from Public Scrutiny,” and amounted to a call for increased secrecy of intelligence operations.  But her defense of intelligence secrecy, she said, was contingent on robust congressional oversight and was not intended to shield misconduct or to perpetuate overclassification.  A webcast of the talk is available here (the discussion of classification begins at about 28:45).

Army Intel Journal Back Online

The U.S. Army last year blocked online public access to the Military Intelligence Professional Bulletin (MIPB), an Army intelligence journal, and moved the publication archive to the password-protected “Intelligence Knowledge Network.”  (“Army Blocks Public Access to Intel Journal,” Secrecy News, March 31, 2009).

But in response to a Freedom of Information Act request from the Federation of American Scientists, the Army promptly handed over a softcopy of the MIPB archive, as it was obliged to do.  (One exception: A Fall 2007 issue on Biometrics, marked FOUO, has not yet been approved for public release.)

Back issues of the MIPB through the end of 2008 are now available here.

For the last several years, a growing volume of government information, especially unclassified defense-related information, has been removed from official websites and transferred behind password-protected portals.  There is no complete record of what has been removed, and to reverse the process therefore requires a time-consuming, piecemeal effort just to identify and secure the most valuable items.

OSC Views New Cuban Leadership

The political leadership of Cuba, which has undergone significant turnover in the past year, was profiled in a new publication this month by the DNI Open Source Center (OSC).

“Raul Castro has overhauled the leadership of top government bodies, especially those dealing with the economy, since he formally succeeded his brother Fidel as president of the Councils of State and Ministers on 24 February 2008,” the OSC observed. “Since then, almost all of the Council of Ministers vice presidents have been replaced, and more than half of all current ministers have been appointed.”

See “Cuban Leadership Overview” (pdf), Open Source Center, April 16, 2009.  A handsome poster featuring photographs of dozens of senior Cuban officials was also compiled by the Open Source Center.  See “Cuban Leadership Chart” (pdf), April 16, 2009.

Like most Open Source Center products, these items have not been approved for public release.  Copies were obtained by Secrecy News.

Specter Bills Seek to Rein In Executive Power

Senator Arlen Specter (R-PA) last week reintroduced three bills that he said were needed to limit presidential power and to restore the proper constitutional balance among the three branches of government.

The first bill (S.875) would instruct courts not to rely on a presidential signing statement when interpreting the meaning of any statute. (Similar legislation was introduced in previous sessions of Congress, but was not passed.)

President Bush used signing statements “in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced,” said Sen. Specter on April 23. “As outrageous as these signing statements are,… it is even more outrageous that Congress has done nothing to protect its constitutional powers,” he said.

The second bill (S.876) would substitute the United States as the defendant in place of telecommunications companies in pending lawsuits alleging unlawful surveillance. (Sen. Specter also introduced such a bill in 2008.)

“It is not too late to provide for judicial review of controversial post-9/11 intelligence surveillance activities,” Sen. Specter said. “The cases before Judge Vaughn Walker [alleging unlawful surveillance] are still pending and, even if he were to dismiss them under the statutory defenses dubbed ‘retroactive immunity’, Congress can and should permit the cases to be refiled against the Government, standing in the shoes of the carriers.”

“The legislation also establishes a limited waiver of sovereign immunity… to prevent the Government from asserting immunity in the event it is substituted for the current defendants,” Sen. Specter explained. (As for the likelihood that the Government would assert the “state secrets privilege” to abort such litigation, that is addressed in another pending bill.)

The third bill (S.877), which is new, would require the Supreme Court to review certain cases concerning the constitutionality of intelligence surveillance, statutory immunity for telecommunications providers, and other communications intelligence activities, and would eliminate the Court’s discretion as to whether or not to grant “certiorari.” The bill was necessitated, he said, by the Supreme Court’s refusal to review an appeals court decision that overturned a 2006 ruling by Judge Anna Diggs Taylor which found the Terrorist Surveillance Program to be unconstitutional.

Sen. Specter discussed his approach to these matters in “The Need to Roll Back Presidential Power Grabs,” New York Review of Books, May 14, 2009.

Information Needs in a Democracy: Request for Comment

While official secrecy is a serious impediment to democratic vitality, the continuing decline of news gathering, reporting and editorial capacity could be a potential catastrophe.  It is still unclear whether new and nascent forms of information sharing can provide a satisfactory substitute.

The Knight Commission on the Information Needs of Communities in a Democracy is soliciting public input on a series of questions about information access and use, revolving around the most basic question:  “Do you have the information you need to accomplish your personal goals and to be an effective citizen?”  To participate in the survey, go here.

Piracy, Organized Crime, and More from CRS

At the direction of Congress, the Congressional Research Service does not make its products directly available to the public.  Recent CRS reports obtained by Secrecy News include the following (all pdf).

“Legal Analysis of Religious Exemptions for Photo Identification Requirements,” April 13, 2009.

“Federal Advisory Committees: An Overview,” April 16, 2009.

“Piracy Off the Horn of Africa,” April 21, 2009.

“FY2009 Spring Supplemental Appropriations for Overseas Contingency Operations,” April 17, 2009.

“Organized Crime in the United States: Trends and Issues for Congress,” April 16, 2009.

“Disconnected Youth: A Look at 16- to 24-Year Olds Who Are Not Working or In School,” April 22, 2009.

Secrecy vs. Scientific Integrity

Following an August 28, 2008 explosion at the Bayer CropScience facility in Institute, West Virginia, Bayer used official secrecy restrictions to limit public awareness of the accident and to impede investigators from the U.S. Chemical Safety Board, a congressional review found.

“Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer’s activities; and by providing inaccurate and misleading information to the public,” according to an April 21, 2009 staff report (pdf) from the House Energy and Commerce Committee.

In testimony before Rep. Bart Stupak’s Oversight Subcommittee this week, Bayer CropScience President William B. Buckner admitted that Bayer’s secrecy practices were driven not only by “legitimate security concerns” but also by “a desire to limit negative publicity generally about the company or the Institute facility.”  “We concede that our pursuit of [secrecy protection] was motivated, in part, by a desire to prevent that public debate from occurring in the first place,” Mr. Buckner said (pdf).

While Mr. Buckner’s candor is unusual, his company’s instinctive reliance on secrecy to help shape public perception is not.  Such politically motivated secrecy is a predictable and normal response to unwanted scrutiny.  Policymakers and others who aspire to an optimal degree of transparency in government must anticipate such responses and deploy countermeasures against them.

A new opportunity to help develop such countermeasures arises in a White House policy on scientific integrity that is now under development, and which would require public disclosure of most policy-relevant scientific and technological information:

“Except for information that is properly restricted from disclosure under procedures established in accordance with statute, regulation, Executive Order, or Presidential Memorandum, each agency should make available to the public the scientific or technological findings or conclusions considered or relied on in policy decisions,” according to a March 9, 2009 statement from President Obama.

But how can the new policy ensure that only information which is “properly restricted” by statute or regulation will be withheld from disclosure?  What tools can be put in place against the inevitable political abuse of secrecy authority?  How can the new policy overcome the ordinary “desire to limit negative publicity”?

There are several mutually reinforcing ways to answer such a question. Briefly, a thorough reconsideration of the criteria for restricting information is needed, along with a reexamination of how such criteria are exercised in practice.  New oversight mechanisms and disclosure authorities are needed to promote compliance.  New appeal procedures would help to adjudicate difficult or contested cases.

“We fully acknowledge the need for further guidance on what materials should and should not be marked as SSI [sensitive security information],” Mr. Buckner told Congress this week.  In fact, further guidance and improved clarity are needed all around.

In a Federal Register notice today, the Office of Science and Technology Policy (OSTP) solicited public comment on the implementation of President Obama’s memorandum on scientific integrity.  “Comments from the public will help the OSTP determine what should be included in these recommendations. Respondents are invited to suggest: (1) Recommendations that would be responsive to the aims of the President, (2) specific implementing strategies, and (3) data and empirical evidence related to the effectiveness of strategies to promote scientific integrity,” the April 23 Federal Register notice said.  Public comments are due by May 13.

More Declassified Documents on Torture

The Senate Intelligence Committee released a newly declassified account of the opinions issued by the Justice Department Office of Legal Counsel concerning CIA’s interrogation and detention program during the Bush Administration.  The document is neutral, dispassionate, and maybe a little dull, particularly when compared with the gruesomely detailed contents of some of the OLC opinions themselves, on which it does not render any moral or legal judgment.  Remarkably, release of this Senate report was blocked last year when the Bush Administration National Security Council refused to declassify it.  But now it, and much more, has been released.  See “Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program” (pdf), released April 22, 2009.

Another newly declassified report, from the Senate Armed Services Committee, does not shrink from drawing conclusions.  “The report represents a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse–such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan–to low ranking soldiers. Claims, such as that made by former Deputy Secretary of Defense Paul Wolfowitz that detainee abuses could be chalked up to the unauthorized acts of a ‘few bad apples,’ were simply false,” said Sen. Carl Levin in an April 21 floor statement introducing the report (large pdf).

Does torture work?  Preempting and perhaps foreclosing an argument advanced by former Vice President Cheney and others, DNI Dennis C. Blair said in an April 21 statement that “The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security,” he said.

Harman, AIPAC, and Leaks

Updated below

By all authoritative accounts, Rep. Jane Harman (D-CA) did not interfere in the investigation of two former pro-Israel lobbyists who were suspected of unlawfully receiving and transmitting classified information.  She did not seek to win favorable treatment for them from the Justice Department.  They did not receive any such treatment.  And she did not become chair of the House Intelligence Committee.

Nevertheless, she stands accused of saying that she would get involved in the case of the pro-Israel lobbyists in exchange for outside efforts to promote her candidacy to be chair of the House Intelligence Committee.

In a widely cited story in CQ Homeland Security, Jeff Stein reported that several former government officials had told him that Rep. Harman had been captured on a National Security Agency wiretap speaking with an unidentified “suspected Israeli agent” agreeing to “waddle into” the controversial case of the two former AIPAC officials, who were charged under the Espionage Act with mishandling classified information, and to try to get the charges against them reduced.  “In exchange for Harman’s help,” Stein wrote, the suspected Israeli agent pledged to help lobby for Harman’s appointment as intelligence committee chair.

Rep. Harman denied any misconduct.  “These claims are an outrageous and recycled canard, and have no basis in fact,” Harman said in a statement to CQ. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.”

In a follow-up story by Neil A. Lewis and Mark Mazzetti, the New York Times confirmed the existence of an NSA recording, but also added several important points.

David Szady, the former FBI counterintelligence official who zealously led the investigation of the two AIPAC suspects told the Times that Rep. Harman never interfered in his pursuit.  “In all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation,” Mr. Szady said.

(The trial of the AIPAC defendants, Steven Rosen and Keith Weissman, who are charged with multiple counts of violating the Espionage Act, is scheduled to begin on June 2.)

The Times did not independently confirm the CQ claim that former Attorney General Alberto Gonzales had quashed an investigation into Rep. Harman’s statements purportedly because he wanted her support of the Bush Administration’s warrantless surveillance program. [Update, 4/24/09: In a follow-up story published April 23, the Times did independently confirm that Gonzales intervened in the case.]

The Times reported that an official familiar with the NSA transcript said that Rep. Harman “appeared to agree” to intervene in the AIPAC case in exchange for support of her chairmanship of the House Intelligence Committee.

But by introducing some equivocation about her “apparent” agreement, the Times implied that the transcript is susceptible to other interpretations.  It also highlighted the least credible aspect of the story — the alleged quid pro quo between Harman and the “suspected Israeli agent.”

What makes the quid pro quo allegation questionable is that neither side of the reported conversation seemed to need an inducement to act as described.  Of all potential candidates for chair of the House Intelligence Committee (Harman, Hastings, Reyes), Harman’s views have probably been closest to those of pro-Israel lobbyists.  Their support of her was not in doubt.  Nor did Rep. Harman require extraordinary incentives to be concerned about the prosecution of the former AIPAC officials.  That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

Ironically, the single identifiable crime in this whole story is the unauthorized disclosure of the classified contents of an intelligence intercept to CQ, and then to the New York Times.  While there is no categorical legal prohibition against all classified leaks, several specific categories of classified information are protected by statute and their release is a felony offense.  Under 18 U.S.C. 798, one of those is the unauthorized disclosure of communications intelligence, like that gathered by NSA.

Jeff Stein provides a second-day review and update of the story here.

Update: In an April 21 letter to the Attorney General (pdf), Rep. Harman demanded the release of “all transcripts and other investigative material involving me in an unredacted form. It is my intention to make this material available to the public.”

“Let me be absolutely clear: I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding national security cases on which I was briefed, or any other cases,” she wrote.