Posts from May, 2010

House to Consider GAO Audits of Intelligence

Updated below, to reflect passage of the amendment

Defying a previous veto threat from the White House, the House of Representatives will consider an amendment to bolster intelligence oversight by requiring intelligence agencies to cooperate with the Government Accountability Office when it performs audits that are requested by a congressional committee with jurisdiction over intelligence.

In general, the amendment (pdf) states, “the Director of National Intelligence shall ensure that personnel of the Government Accountability Office designated by the Comptroller General are provided with access to all information in the possession of an element of the intelligence community that the Comptroller General determines is necessary for such personnel to conduct an analysis, evaluation, or investigation of a program or activity of an element of the intelligence community that is requested by one of the congressional intelligence committees.”

The amendment to the FY2011 Defense Authorization Act (HR 5136) was sponsored by Rep. Anna Eshoo (D-CA) and several colleagues.

When a similar amendment was included in the FY2010 Intelligence Authorization Act, which is still pending, it prompted a veto threat from the Obama White House.  But the White House opposition was based on an erroneous interpretation of the law, the Acting Comptroller of the GAO told Congress.

Somewhat surprisingly, given the likelihood of a renewed veto threat, the House Democratic leadership ruled that the Eshoo amendment was “in order,” and it will therefore be considered on the House floor, perhaps today or tomorrow.

Back when he was a Congressman in 1987, CIA Director Leon Panetta introduced a bill called the “CIA Accountability Act” (pdf) that would have reinforced GAO oversight over the Central Intelligence Agency.

Update: The amendment passed the House on May 27 by a vote of 218-210. See this news release from Rep. Eshoo: House Passes Legislation to Increase Oversight of Intelligence Community.

People Crossing Borders, and More from CRS

The system of national borders that is intended to exclude unauthorized persons can be conceptualized as a “fortress” with rigid barriers forming a secure perimeter, or as a “complex organism” with flexible layered defenses and interactions with the external environment. The application of these models to the United States, along with an evaluation of their possible effectiveness, is presented in a new report from the Congressional Research Service.  See “People Crossing Borders: An Analysis of U.S. Border Protection Policies,” May 13, 2010.

Other new CRS products that have not been made readily available to the public include the following (both pdf).

“Potential Stafford Act Declarations for the Gulf Coast Oil Spill: Issues for Congress,” May 13, 2010.

“FY2010 Supplemental for Wars, Disaster Assistance, Haiti Relief, and Court Cases,” May 12, 2010.

Jail Sentence Imposed in Leak Case

Shamai Leibowitz, a former FBI contract linguist, was sentenced yesterday to twenty months in jail for having unlawfully disclosed classified documents to an unidentified blogger.  It is only the third case in which a government employee has been convicted of “leaking” classified information to the press.

Mr. Leibowitz said that his intention was to expose official misconduct, not to damage national security.  “During the course of my work I came across wrongdoings that led me to conclude this is an abuse of power and a violation of the law.  I reported these violations to my superiors at the FBI who did nothing about them.  Thereafter, to my great regret, I disclosed the violations to a member of the media,” he said.

Mr. Leibowitz, an Israeli-American lawyer, told the court he now understood that he should have gone to the Inspector General of the Justice Department instead.

“I used bad judgment and made a terrible decision.  I would like to emphasize,” he told the judge in a written statement, “that I was not motivated by greed, fame, personal ambition, or foreign interests.  I made a mistake but only because I believed it was in the best interests of the American people.  I truly regret that my misguided patriotism led me to make a mistake that is wholly uncharacteristic of me.”

Prosecutors said that Mr. Leibowitz had “betrayed the FBI” by revealing information he had pledged to protect, and that his conviction should help to deter others against disclosing classified information.

“The willful disclosure of classified information to those not entitled to receive it is a serious crime,” said David Kris, Assistant Attorney General for National Security. “Today’s sentence should serve as a warning to anyone in government who would consider compromising our nation’s secrets.”

In many respects, Mr. Leibowitz seems to be an admirable character.  He has devoted much of his legal career in Israel and the United States to helping minorities, undocumented workers, refugees and other disadvantaged persons, he informed the court.  In his blog Pursuing Justice, he has helped to raise money for children needing heart transplants, organized opposition to the death penalty, and highlighted the underreported fact that the street vendor who alerted police to the attempted bombing of Times Square was himself a Muslim.

So it may have been a sign of personal integrity that he did what no one else has ever done before:  he pled guilty to the charge of disclosing classified information to the press. [Correction: Larry Franklin pled guilty (pdf) to unauthorized disclosure of national defense information as part of the settlement of his case in 2005. But Mr. Leibowitz pled guilty without having been indicted in the first place.]

(The closest precedent may have occurred in 1778 when a publication revealed the sensitive fact that France was secretly supporting the American Revolutionary cause.  In the course of a leak investigation, John Jay demanded to know if Thomas Paine was responsible.  “Yes, sir,” Paine answered without apology, “I am the author of that piece.”  That remarkable anecdote was unearthed by Gabriel Schoenfeld in his new book “Necessary Secrets,” following Daniel Hoffman’s pioneering Governmental Secrecy and the Founding Fathers.)

By admitting his guilt, Mr. Leibowitz effectively removed one of the most formidable barriers that prosecutors in leak cases must contend with.

Ordinarily, a resourceful defense can seriously complicate a leak prosecution, explained former assistant attorney general Kenneth L. Wainstein at a May 12 Senate hearing, which helps explain why there are so few of them.  “Even if the Justice Department succeeds in identifying and indicting the suspected leaker, it can expect to face a vigorous defense. These cases typically feature legal challenges from defense counsel invoking everything from first amendment principles to allegations of improper classification to arguments that their client’s alleged leak was actually an authorized disclosure within the scope of his or her official duties,” he said (pdf).

In a plea agreement that took note of his cooperation, Mr. Leibowitz’s sentence was reduced from the nominal 46 month prison sentence recommended in sentencing guidelines to 20 months.

Judge Alexander Williams Jr. said at the sentencing hearing yesterday that he was having some difficulty addressing the obligatory question of “sentencing disparity,” i.e. whether the proposed sentence was significantly more or less severe than in other cases — because there were so few other comparable cases to go by.

But as it turns out, Mr. Leibowitz is now poised to serve a longer sentence than any other convicted leaker, observed Josh Gerstein of Politico.  Samuel L. Morison, convicted in 1985 of disclosing spy satellite photos to Jane’s Defence Weekly (and later pardoned by President Clinton), served eight months of a two year sentence.  Larry Franklin, who disclosed classified information to AIPAC employees Steven Rosen and Keith Weissman, served 10 months in community confinement out of an original 12 year jail sentence.  See “Justice Dept. Cracks Down on Leaks” by Josh Gerstein, Politico, May 25.

Judge Williams ordered Mr. Leibowitz (pdf) to surrender himself on August 2 for the start of his prison term.

New Appointments to Declassification Center, Board

Last week, Sheryl Jasielum Shenberger was named by the Archivist of the United States as the first director of the National Declassification Center.

As director, Ms. Shenberger will be responsible for ensuring that the new Center achieves its initial operating capability when it starts operations in earnest next month.  The Center has been tasked by President Obama with eliminating the backlog of over 400 million pages of classified historical records, which must be declassified and made available to the public not later than the end of December 2013.  To meet this ambitious goal, the Center will have to process an average of 100 million pages each year, a tenfold increase over recent practice.

Ms. Shenberger has been a Central Intelligence Agency analyst and desk officer, and currently serves as a Branch Chief at the CIA Declassification Center.  To an outside observer, this is not necessarily a credential that inspires confidence, since CIA classification and declassification policies are among the most arbitrary and questionable anywhere in the government.  But a colleague of Ms. Shenberger praised her performance, and told Secrecy News that she was committed to the goals of the National Declassification Center.  “She’s there to make it work, not to sabotage it.  She wants to succeed, and ‘succeed’ means ‘release’.”

Also last week, attorney William A. Burck was appointed to the Public Interest Declassification Board, which advises the White House on declassification policy.  Its membership is appointed by the White House, and by Congressional majority and minority leaders.

Mr. Burck was named to the Board by Senate Minority Leader Mitch McConnell (R-KY).  According to his bio, he previously served as a Special Counsel to President George W. Bush, in which capacity he advised the President and other officials “on major legal issues confronting the Administration.”

The Public Interest Declassification Board has assumed an increasingly important role in the development of secrecy policy.  Last year, the Board was asked by the National Security Advisor (pdf) to help devise “a more fundamental transformation of the security classification system.”  Board Director Martin C. Faga has recently begun some initial outreach to solicit recommendations on how to effect such a transformation.

The Jurisprudence of Justice John Paul Stevens

“Justice John Paul Stevens played a pivotal role in determining the scope of executive-branch power in a post-9/11 world,” observed the Congressional Research Service in one of a series of new reports reviewing the legacy and impact of Justice Stevens, who is set to retire from the Supreme Court next month.

“Justice Stevens authored majority opinions in two leading cases, Rasul v. Bush and Hamdan v. Rumsfeld, in which the Court allowed detainees’ habeas petitions to proceed and invalidated the early incarnation of military commissions, thereby rejecting the broader views of executive power articulated shortly after the 9/11 attacks.  In the cases, his view prevailed over strongly articulated dissenting opinions authored by Justice Scalia and other justices,” the CRS noted.

“Justice Stevens has been instrumental in developing post-9/11 jurisprudence regarding the limits of executive power during — and following — armed conflicts.  Prior to 9/11, the Supreme Court had rarely considered questions regarding potential limits on the President’s Commander in Chief power.  The wartime detention cases provide key insights into the Court’s views on the reach of executive authority, as well as on other separation-of-power concerns, including Congress’s role.”

However, a portion of this legacy on detainees’ rights may already be subject to limitation or erosion.  Last week, a federal appeals court ruled that detainees held abroad by the U.S. military in Afghanistan — unlike those in Guantanamo — could not invoke habeas corpus to appear before a judge.

See “The Jurisprudence of Justice John Paul Stevens: Leading Opinions on Wartime Detentions” (pdf), May 13, 2010.

The companion reports from CRS are these (all pdf):

“The Jurisprudence of Justice John Paul Stevens: Selected Federalism Issues,” May 19, 2010.

“The Jurisprudence of Justice John Paul Stevens:  Selected Opinions on Intellectual Property Law,” May 14, 2010.

“The Jurisprudence of Justice John Paul Stevens: The Constitutionality of Congressional Term Limits and the Presidential Line Item Veto,” May 18, 2010.

Congress has forbidden CRS to make these and other publications directly available to the public online.  Copies were obtained by Secrecy News.

Update: One more:

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine, May 26, 2010.

Update: And another:

The Jurisprudence of Justice John Paul Stevens: Selected Opinions on the Jury’s Role in Criminal Sentencing, June 7, 2010.

Does Candor Require Secrecy? A Critical Review

When the Supreme Court ordered the Nixon White House to comply with a subpoena for the Watergate tapes in the 1974 case of United States v. Nixon, it also endorsed the general proposition that secrecy is essential to presidential deliberations since it permits greater candor and therefore promotes a superior policy outcome.  “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately,” the Court said.

The premise that candor is incompatible with disclosure has become a cornerstone of the edifice of government secrecy, and an axiom of freedom of information policy, which provides an exemption for deliberative records.  Yet it is mistaken, according to an iconoclastic new law review paper (pdf), and should be corrected.

It seems intuitively obvious that private discussions lend themselves to greater candor than do public ones.  In private, anyone might be more willing to reveal ignorance or uncertainty, to express personal emotion, or to consider risky or improbable alternatives.

But this is “a highly contestable view of human nature,” write Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, and it has little empirical basis.  What’s worse, they say, is that the equation of candor and confidentiality fails to take into account the corrosive effects of secrecy.

In practice, according to the authors, secrecy may actually discourage candor.  “When policy deliberations are deemed likely to remain secret, dissenters from the majority view might be more reluctant to give voice to their concerns…. And decision makers themselves might feel freer to silence dissenters when they do not expect their decision-making processes to be subject to scrutiny.”  This was often reportedly the case during the George W. Bush Administration when, according to multiple accounts cited in the paper, presidential advisors declined to question or to challenge confidential policy judgments.

Furthermore, secrecy is not necessary for candor.  Congress rarely invokes secrecy in its deliberations, though it is constitutionally authorized to do so.  As is demonstrated in many political contexts, it is perfectly possible for policy discussions to be both open and candid, with no detrimental effect.  (Under San Francisco’s unusually bold 1999 Sunshine Ordinance, observed Joseph Lorenzo Hall of UC Berkeley, deliberative material is entirely subject to disclosure.)

Finally, the authors write, candor itself does not necessarily promote good decision making.  “While candor may have allowed the president to explore the possibility of engaging the CIA to interfere with an FBI investigation, surely such candor should not be encouraged by the promise of secrecy…. In many of the contexts in which candor is used as a justification for secrecy, the candor that is being shielded is candor that disserves the public interest.”

The authors emphasize that they do not categorically oppose confidential deliberations nor do they advocate that every official meeting be broadcast on live television.  Rather, they argue that the presumption of deliberative secrecy adopted by the Nixon Court is unjustified by principle or practice, and that it should be replaced by a general presumption of openness, especially with respect to congressional requests for access to executive branch records.

“The presumption established by the Nixon Court endorsed and furthered a particular perception of the nature of government decision making — that it is a process whose details should remain hidden behind a veil of secrecy…. It gives presidents and their advisors reason to believe that secrecy is standard operating procedure.”

“Dismantling the Nixon canon — as this Article advocates — would instead foster a culture where the expectations were reversed, where ideas about what is appropriate for public discussion are expanded, and where secrecy must be justified by a risk of significant harm — not harm to the political prospects of the incumbent officials, but to the interests of the nation as a whole.”

See “Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon by Eric Lane, Frederick A.O. Schwarz, Jr., and Emily Berman, George Mason Law Review, volume 17, no. 3, Spring 2010.

Necessary Secrets: Panel Discussion

The Hudson Institute will host a discussion of the new book “Necessary Secrets: National Security, the Media, and the Rule of Law” by Gabriel Schoenfeld on Tuesday, May 25. The book is a provocative account of the history and significance of “leaks” of classified information to the news media. The author laments the growing number and impact of such leaks, and generally argues for more vigorous enforcement of laws against them. The May 25 discussion will feature Mr. Schoenfeld, Benjamin Wittes of the Brookings Institution, and myself. There will be a keynote address by former CIA director Gen. Michael Hayden.

JASON: Basic Research at the Pentagon is “Broken”

Basic scientific research sponsored by the Department of Defense has suffered a precipitous decline in recent years, according to a newly disclosed 2009 report (pdf) from the JASON defense advisory panel.

“Basic research” refers to the investigation of fundamental phenomena, and contrasts with “applied research” that aims to meet a specific mission requirement or to solve a specified problem.

“Over the past decade, there has been an exodus of scientific and technical expertise from the U.S. government and, in particular, from the DoD [basic] research enterprise,” the JASONs said.

“Gone are many of the technically literate program officers who plied the streets of the scientific community to find those remarkable people who could help shape the future. Gone too are many of the scientists and engineers in the academic community [who were supported by DoD basic research contracts] and who contributed to revolutionary advances that changed the landscape of modern war fighting. And most importantly, lost is the opportunity to develop the next generation of scientific talent who would otherwise have been trained and capable of carrying the research enterprise forward.”

“Despite the importance of DoD Basic Research, we believe that important aspects of the DoD basic research programs are ‘broken’ to an extent that neither throwing more money at these problems nor simple changes in procedures and definitions will fix them,” the report said.

The JASONs nevertheless offer a series of recommendations concerning program organization and personnel recruitment to strengthen basic research. Among other things, they say that DoD should reject the “peer review” model for evaluating funding decisions, since that tends to reinforce the status quo, and should instead provide funding to exceptional individuals. They favorably cite Nobel laureate Luis Alvarez saying: “In my considered opinion the peer review system, in which proposals rather than proposers are reviewed, is the greatest disaster to be visited upon the scientific community this century….”

The JASON report was originally marked “for official use only.” When the Federation of American Scientists requested it last year under the Freedom of Information Act, most of the document was withheld as “deliberative.” But upon appeal, DoD agreed this month to release the entire report. To accompany the release, Alan R. Shaffer, Director of Defense Research and Engineering, issued a cover memorandum stating that the JASON report was “one perspective” among several and that it was not based on a comprehensive data set.

See “S & T for National Security,” JASON Summer Study, completed May 2009, released May 2010.

Reform of “Secret Holds” Derailed in Senate

A long-term, bipartisan effort to eliminate the Senate custom of using “secret holds” to anonymously block pending legislation or nominations was scuttled just as it was on the verge of approval last Thursday after Sen. Jim DeMint (R-SC) attempted to insert an unrelated amendment at the last minute.

“I cannot recall another instance where the cause of open government took a beating… like the cause of open government took this afternoon,” said Sen. Ron Wyden (D-OR), who led the initiative, along with Sen. Charles Grassley (R-IA), Sen. Claire McCaskill (D-MO) and others.  Their proposal would generally have required Senators to file a notice of intent whenever they had an objection to Senate proceedings.

“We did not win this afternoon because I think we got kneecapped,” said Sen. Wyden.  “I do not know how to describe it any other way.”

“I can tell you, I have never seen anything like this in my time in the Senate: one Senator coming in, at the last moment, with no notice, trying to derail the cause of open government,” an angry Sen. Wyden said May 13.

A spokesman for Sen. DeMint told the Washington Post that it was not his intent to block the reform of secret holds, but only to get a vote on his own measure, and that he too supported an end to secret holds.

The practice of secret holds is “one of the most pernicious, most antidemocratic practices in government,” said Sen. Wyden.

Only one Senator has publicly disagreed.  Sen. Robert Byrd (D-VA) said that in his view, “there are situations when it is appropriate and even important for Senators to raise a private objection to the immediate consideration of a matter with the leadership and to request a reasonable amount of time to try to have concerns addressed.”

Taping Intelligence Interrogations, and Various Resources

A new Department of Defense policy memorandum requires the videotaping of intelligence interrogations of prisoners in DoD custody, including interrogations that are performed by the Central Intelligence Agency.  “As a condition of having access to conduct strategic intelligence interrogations, individuals representing other U.S. Government agencies, interagency mobile interrogation teams, and foreign governments must comply with this [policy] when conducting strategic intelligence interrogations,” the DoD memorandum states.  See “Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of the Department of Defense” (pdf), Directive-Type Memorandum (DTM) 09-031, May 10, 2010.

Background on recent upheaval in the Central Asian country of Kyrgyzstan is presented in “The April 2010 Coup in Kyrgyzstan: Context and Implications for U.S. Interests” (pdf), Congressional Research Service, May 7, 2010.

The nuclear research reactors that were constructed at Oak Ridge National Laboratory during its 66-year history, only one of which is still operational, were described and illustrated in “An Account of Oak Ridge National Laboratory’s Thirteen Nuclear Reactors” by Murray W. Rosenthal, August 2009 (revised March 2010).

Intelligence community policy on preparing independent cost estimates in support of the National Intelligence Program budget was set forth in “Independent Cost Estimates” (pdf), Intelligence Community Directive (ICD) 109, April 26, 2010.

The U.S. Army’s vision of the future development of unmanned aircraft systems for situational awareness and combat operations was presented in “U.S. Army Roadmap for UAS 2010-2035″ (pdf), April 2010.