Posts from March, 2010

Wyden: Patriot Act Secrecy is “Intolerable”

“I believe that there is a discrepancy between what most Americans believe is legal and what the government is actually doing under the Patriot Act,” said Sen. Ron Wyden (D-OR) in a statement last week on the Senate floor regarding reform of the Patriot Act.

“In my view, any discrepancy of this sort is intolerable and untenable, and can only be fixed by greater transparency and openness.”

“Most members of the public do not expect to have detailed information about how intelligence collection is actually conducted,” Sen. Wyden said, “but they do expect to understand the boundaries of what the law does and does not allow, so that they can ratify or reject the decisions that public officials make on their behalf.”

Under present circumstances, Sen. Wyden said, Americans do not have an accurate perception of what the Patriot Act permits and how it is being used and, he said on Thursday, this is unacceptable.

“There is key information that is relevant to the debate on the Patriot Act that is currently classified.  Over the past two and a half years, I have pressed the executive branch to declassify this information in a responsible way, so that members of Congress and the public can have an informed debate about what the law should actually be.”

In partial response, he said, the Attorney General and the Director of National Intelligence have produced a classified account of the use of the Patriot Act that any member of Congress can now read in the intelligence committees’ secure offices.

“But by itself this step does not go nearly far enough,” he said.  “It is just as essential for the public to have this information as well.”

Among other things, Sen. Wyden noted that the so-called “business records” provision of the Patriot Act (Section 215) actually applies to collection of “any tangible thing,” which means that “it covers things like blood or tissue samples as well.”

A U.S. Biometrics Agency

As of last week, there is now a U.S. Government national security agency called the Biometrics Identity Management Agency (BIMA).  It supersedes a Biometrics Task Force that was established in 2000.

Though nominally a component of the Army, the biometrics agency has Defense Department-wide responsibilities.

“The Biometrics Identity Management Agency leads Department of Defense activities to prioritize, integrate, and synchronize biometrics technologies and capabilities and to manage the Department of Defense’s authoritative biometrics database to support the National Security Strategy,” according to a March 23 Order (pdf) issued by Army Secretary John M. McHugh that redesignated the previous Biometrics Task Force as the BIMA.

Biometrics is generally defined as “a measurable biological (anatomical and physiological) [or] behavioral characteristic that can be used for automated recognition.”

“Biometric data [are] normally unclassified,” according to a 2008 DoD directive (pdf).  “However, elements of the contextual data, information associated with biometric collection, and/or associated intelligence analysis may be classified.”

“Biometrics-enabled Intelligence [refers to] intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity.”

“Biometrics is an important enabler that shall be fully integrated into the conduct of DoD activities to support the full range of military operations,” the 2008 directive stated.

“Every day thousands of [biometric] records are collected and sent to the Department of Defense (DOD) Automated Biometric Identification System (ABIS) to store and compare against existing records,” a 2009 DoD report (pdf) said. “The technology is improving such that a submission from theater [e.g., in Afghanistan] can be searched in the DOD ABIS and a response sent back to theater in less than two minutes.”

“Realtime positive identification of persons of interest enables Coalition forces to target, track, and prosecute known or potential adversaries,” the DoD report said.

White House Report on Strategic Communication

A new White House report to Congress (pdf) defines “strategic communication” as “the synchronization of our words and deeds as well as deliberate efforts to communicate and engage with intended audiences.”

“This understanding of strategic communication is driven by a recognition that what we do is often more important than what we say because actions have communicative value and send messages,” the report stated.  “Every action that the United States Government takes sends a message.”

Unfortunately, the report does not begin to acknowledge any instances in which U.S. government actions are inconsistent with U.S. government words,  thus necessitating their “synchronization,” and so it is not very illuminating.

A copy of the report, transmitted to Congress on March 16 and reported March 25 by Inside the Pentagon, is available here.

The report refers in passing to a Presidential Study Directive on Development, a document that has not yet surfaced in the public domain.

Is There a War on Wikileaks?, which publishes confidential documents online, says that it is being harassed by U.S. military and intelligence agencies because of its disclosures of restricted information, including the forthcoming release of a classified U.S. military video of an air strike in Afghanistan that produced civilian casualties.  But those claims are disputed and can hardly be taken at face value.

“That WikiLeaks is being targeted by the U.S. Government for surveillance and disruption is beyond doubt,” declared Glenn Greenwald in

In support of this conclusion he cited the detention of a minor in Iceland last week who was supposedly questioned about an incriminating WikiLeaks video.  But there is no independent corroboration of this incident.  And WikiLeaks’ account of what transpired, though recounted by Salon as fact, is disputed by Iceland’s police:

“Chief of police in Reykjavik, Fridrik Smari Bjorgvinsson, said the only link he has been able to establish between the allegations and his force was the arrest of a 17 year-old in Kopavogur on Monday for breaking into a business premises. Bjorgvinsson emphasised that Icelandic police have not been working with the American secret services on the matter, as Wikileaks spokesmen allege.”

Perhaps the Reykjavik police chief is also part of a global campaign to destroy WikiLeaks.  Or perhaps the whole story is one of mystification and error.

Law Review Papers on the State Secrets Privilege

Although the state secrets privilege is not much in the news at the moment, it continues to percolate in the law review literature.

The privilege, narrowly conceived, is a way for the government to block the introduction in court of specific pieces of evidence that it deems too sensitive for disclosure.  But in recent years, the invocation of the privilege has led to the termination and dismissal of entire cases.

Last September, Attorney General Holder established new internal procedures to “ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

But “the new policy cannot serve as an adequate accountability mechanism,” according to a new law review paper, particularly since “nothing in the policy compels administration cooperation with courts once the state secrets privilege is asserted.”  See “State Secrets and Executive Accountability” by Christina E. Wells, Constitutional Commentary, forthcoming.

“Between 2001 and 2009 the government asserted state secrets in more than 100 cases,” a much higher count than previously reported, “while in scores more litigants appealed to the doctrine in anticipation of government intervention.”  See “The Shadow of State Secrets” by Laura Donohue, University of Pennsylvania Law Review, forthcoming.

Another pending law review paper of interest, though not specifically on the state secrets privilege, is “A New Era of Openness? Disclosing Intelligence to Congress Under Obama” by Kathleen Clark, Constitutional Commentary, forthcoming.

Court: Agency Tried to Release Too Much Info

Most criticism of the Freedom of Information Act centers on agency refusals to disclose requested records in a timely manner.  But a federal appeals court said this week that a Defense Department agency was “arbitrary and capricious” in its decision to release documents to a Freedom of Information Act requester.

The ruling comes shortly after the release of several new evaluations of government compliance with the Freedom of Information Act by the National Security Archive, the Associated Press, and Citizens for Responsibility and Ethics in Washington.  Each of these independent efforts found that FOIA performance in the first year of the Obama Administration in one way or another had fallen short of the Administration’s proclaimed standard of “unprecedented openness.”  Each report identified questionable patterns in some agencies’ handling of FOIA requests, mostly involving the frequency of denials, the persistence of backlogs of unanswered requests, and haphazard implementation of new Obama FOIA policies.

None of the critics complained of excessive disclosure.  But a federal appeals court this week ruled (pdf) that the Defense Contract Management Agency (DCMA) had been too forthcoming and had tried to disclose information in response to a FOIA request that arguably should be withheld.

After the DCMA granted a FOIA request in 2005 to release certain audit reports involving two DoD contractors, the affected companies filed so-called “reverse FOIA” lawsuits to block the disclosures.  Those companies (Sikorsky Aircraft and Pratt & Whitney) said that the proposed releases would cause them “embarrassment or negative publicity” and would compromise proprietary information that could be exploited by their competitors.  The Defense Department disputed these claims and prevailed against the companies in district court.  Upon appeal, the higher court concurred that “embarrassment” was not a legitimate grounds for withholding, but it found that the possible compromise of proprietary information had not been adequately taken into account by the lower court.

“DCMA’s decision to release the documents was arbitrary and capricious,” the court said.  It therefore reversed the lower court’s ruling in favor of disclosure, and remanded the case for further consideration. More background on the case is available from the Project on Government Oversight here.

So is the FOIA process too restrictive in denying information, or too lax in releasing it?  Any FOIA requester will answer that it’s too restrictive.  For one thing, just as overclassification is prevalent in many national security agencies, unnecessary withholding of information under FOIA because of dubious classification controls is likewise commonplace.

But a larger point is that annual statistics on FOIA releases and denials, like those reported by agencies last week, are an imperfect indicator of changes in government openness, for at least two reasons.

First, the FOIA is not only a disclosure statute, it is also a withholding statute, i.e. it authorizes or requires both actions under various circumstances.  If an agency received 100 requests for the blueprints of a classified weapon system and it issued 100 denials, the agency would have complied with FOIA perfectly, because Congress did not intend for properly classified material to be disclosed under the Act. Denials are not necessarily a sign of bad faith, or of a failure of FOIA policy.

Second, the comparison of FOIA release and denial data between last year and the year before, as performed by the Associated Press and others, would be valid and interesting only if the initial FOIA requests each year were identical, or at least roughly similar.  But no effort has been made to demonstrate that that is so.

For the same reasons, it is doubtful that Attorney General Eric Holder was correct to say that a recent increase in the proportion of FOIA disclosures demonstrated increasing openness in the Justice Department, as he did on March 15:  “Today, I’m pleased to report that the disturbing 2008 trend – a reduction in this Department’s rate of disclosures – has been completely reversed.”

By itself, a net increase in disclosures is not a sure sign of a new devotion to openness, nor is a reduction in the rate of disclosures conclusive evidence of non-compliance with FOIA or of agency hypocrisy.

(If there were a statistical rise in judicial rulings against the government in FOIA cases, that would be a strong indication that agencies were increasingly acting in violation of the law.  But that doesn’t seem to be the case either.)

Another reason why annual disclosure rates are unreliable or ambiguous indicators is that they can be artificially diminished by spurious requests.  The Central Intelligence Agency’s 2009 log of FOIA requests (flagged by lists quite a few eccentric and offbeat requests that are clogging CIA FOIA channels, along with numerous bona fide inquiries.

One requester asked for CIA “documents pertaining to the Best Buy located at 4500 Wisconsin Ave NW” in Washington DC.  Under the peculiar terms of the FOIA, the request must be processed like any other.  But it would be quite surprising if a FOIA request for CIA records about this “facility,” which I happen to walk by every day, yielded anything other than a “no records” response.  If so, such a negative response would automatically lower CIA’s annual rate of disclosure without providing meaningful insight into CIA FOIA policy.

IG: State Dept Should Produce 12 FRUS Volumes Per Year

The Department of State must begin producing new volumes of the Foreign Relations of the United States (FRUS) series at a rate of a dozen volumes per year if it is going to fulfill its statutory mandate to document the history of U.S. foreign policy not later than 30 years after the fact, the State Department Inspector General said in a new report (pdf).

“The [State Department Historian's Office] is behind schedule in meeting the statutory FRUS deadline: HO historians only now are compiling the contents of the volumes covering the foreign policy of the Carter administration (1977-1981),” the Inspector General report said.  “To achieve compliance with the 30-year deadline, HO will need to accelerate the rate of publication to approximately 12 volumes per year.”

The IG audit found that after a controversial period of management turmoil in 2007 and 2008 culminating in a 2009 IG inspection report (pdf), conditions in the Historian’s Office had stabilized, with “improved morale, reduced factionalism, and [a] strengthened spirit of civility” as well as “greater openness and a more participatory style of management.”  But more recently, as the pace of internal reform has slowed, “morale has begun to decline.”

See “Report of Inspection: The Bureau of Public Affairs,” U.S. Department of State Office of Inspector General, February 2010, at pp. 34-38.

Judge: If You Leak Classified Info, Take the Consequences

Leaking classified information to an unauthorized person may be the right thing to do in certain circumstances, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a newly released hearing transcript from last year.  In particular, he said, leaking may be an acceptable move if the leaker accepts full responsibility for his actions.

Ordinarily, disclosing classified information to an unauthorized person is deemed unethical, if one has signed a non-disclosure agreement not to do so.  It may also be illegal, if the classified information falls within certain categories whose unauthorized disclosure is proscribed by law (including communications intelligence-related information, identities of covert agents, nuclear weapons design information, and “national defense information”).

“Whistleblowing” in itself is not an adequate rationale for leaking classified information, Judge Ellis said.  “Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify [publicly disclosing] it…. Noble motives don’t erase the violation.”

However, he said, “you may want to go ahead and do it [anyway], but you have to stand up and take the consequences.”

“I don’t have a problem with people doing that if they are held accountable for it,” Judge Ellis said.  “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country.  But then one has to take the consequences, because the rule of law is so important.”

“Disclosing it was okay if the person is willing to stand up and say, ‘I did it. Give me the consequences’.”

Judge Ellis spoke at a June 11, 2009 hearing on the reduction of the sentence for Lawrence A. Franklin, who was convicted of disclosing classified information to two officials of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, who were themselves charged with unauthorized receipt and disclosure of classified information. The controversial case against them was abandoned by the government last year.  Based on his cooperation with prosecutors, Mr. Franklin sought and received a reduction in his own 12-year prison sentence to probation and ten months in “community confinement.”

In addition, Mr. Franklin was ordered to spend 100 hours “giving talks to young people” about the need to protect classified information.  “What I want you to speak to these young people about, Mr. Franklin, is the rule of law and the obligation that public officials have and the importance of classified information,” Judge Ellis explained.  “Secrets are important to a nation.  If we couldn’t keep our secrets, we would be at greater risk…. And I am going to ask that a probation officer send me copies of your lectures on this subject.”

Mr. Franklin is the second person convicted of unauthorized disclosure of classified information in a non-espionage case.  The first was Samuel L. Morison, who was convicted of providing classified intelligence photographs to Jane’s Defence Weekly in 1985.  The third conviction, still pending, is that of Shamai Leibowitz, a former FBI translator who pled guilty last December to the unauthorized disclosure of five classified documents to a blogger.  Prosecutors specifically acknowledged Mr. Leibowitz’s “affirmative acceptance of personal responsibility for his criminal conduct.”

The transcript of Mr. Franklin’s June 2009 sentence hearing was finally prepared last week.  A copy was obtained by Secrecy News and posted on the website of the Federation of American Scientists.

The First Amendment and “Newsgathering Crimes”

It might be pleasant for writers and publishers to suppose that First Amendment principles of freedom of speech and freedom of the press are absolute and will prevail in every circumstance.  But that is clearly not the case.

For one thing, the Supreme Court has specifically excluded obscenity, child pornography, and certain other forms of communication from First Amendment protections.  (See “Freedom of Speech and Press: Exceptions to the First Amendment” (pdf), Congressional Research Service, updated October 16, 2009.)  Moreover, courts have repeatedly upheld the constitutionality of prohibitions in the Espionage Act against the unauthorized disclosure of certain types of classified information (most recently in a 2006 ruling [pdf] in the AIPAC case, USA v. Rosen and Weissman).

The intersection of national security law and ordinary newsgathering remains a bit murky, and is contested in some quarters even where it is fairly clear.  Although “the right of the press to publish confidential information is well established, [t]here is… a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information,” according to a recent law review article.

“Ethics codes for news organizations state that reporters must not commit crimes such as trespassing or stealing information but are silent on inchoate crimes such as solicitation,” wrote Prof. William E. Lee of the University of Georgia last year.  “And while news organizations have elaborate rules about relations with confidential sources, they do not address the propriety of promising confidentiality as an inducement to the disclosure of classified information.”

“Although there are practical and political difficulties in prosecuting reporters for solicitation or conspiracy, there is little First Amendment precedent in support of the argument that reporters should be exempt from generally applicable criminal laws.”   See “Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes” by William E. Lee, American Journal of Criminal Law, vol. 36, no. 2, Spring 2009.

The longstanding conflict over press publication of national security information is revisited in the forthcoming book “Necessary Secrets” by Gabriel Schoenfeld (Norton Books, May 2010).

Book: The Iraq Papers

An extensive compilation of official documents, policy advocacy statements, and assorted commentary on the U.S. decision to go to war in Iraq in 2003 is presented in “The Iraq Papers,” a new book from Oxford University Press.

Since it seems that there will be no new official reckoning of the Iraq war or other Bush Administration policy choices, it will be left to others to achieve their own understanding of the Bush era and its aftermath.  “The Iraq Papers” provides one possible documentary starting point.

“The decision to invade Iraq launched a new doctrine of preemptive war, mired the American military in an intractable armed conflict, disrupted world petroleum supplies, cost the United States billions of dollars, and damaged or ended the lives of hundreds of thousands of Americans and Iraqis,” the book states.

The book editors are not overly perplexed by these events.  Somewhat heavy-handedly, they offer their own interpretation of events involving the decisive influence of neo-conservatives, the unitary executive, and a U.S. drive to global hegemony, among other factors.  Alternative explanations are not considered here.

See “The Iraq Papers,” edited by John Ehrenberg, J. Patrice McSherry, Jose Ramon Sanchez, and Caroleen Marji Sayej, Oxford University Press, January 2010.