Posts from May, 2010

Controls on Unclassified Info Invoked to Evade FOIA

A federal court ruled (pdf) last year that the Department of Energy was obliged to disclose certain records concerning the Advanced Test Reactor (ATR) in Idaho after they were requested under the Freedom of Information Act by a public interest group, Keep Yellowstone Nuclear Free.  The court said that the exemptions to the FOIA claimed by DOE were not applicable in this case, and that the requested documents therefore must be released.

In order to prevent that from happening, DOE decided to designate portions of the records as “Unclassified Controlled Nuclear Information” or UCNI, which is protected by the Atomic Energy Act, and beyond the reach of FOIA.  “The documents have not previously been treated as UCNI,” DOE admitted to the court (pdf) last year, “and information related to the ATR has not been treated as UCNI since 1992, but” — prompted by the judge’s adverse FOIA ruling — “DOE has now determined that redacted portions of these documents fall within the statutory definition of UCNI.”

While there is abundant historical reason (pdf) to be skeptical of such opportunistic attempts to evade public disclosure, there is no specific reason to doubt that DOE acted in good faith in this case.  It may well be true that release of the withheld portions of the records — describing high consequence accident scenarios and locations of vital safety and security systems — could facilitate a “potentially catastrophic” act of sabotage, as DOE officials contended.

The FOIA requesters themselves agreed to accept the documents as redacted for UCNI.  The parties reached a settlement and the case was dismissed. Keep Yellowstone Nuclear Free declared victory with the receipt of some 1100 pages documenting ATR safety issues.

Last week, DOE’s Karl Hugo, who participated as a government classification expert in the case, presented his view of the issues (pdf) to a conference of DOE classification officers in Germantown, Maryland.  Two months ago, DOE issued an updated Order on “Identification and Protection of Unclassified Controlled Nuclear Information” (pdf) (DOE Order O471.1B, March 1, 2010).  Within weeks, the Obama Administration is expected to issue a somewhat controversial new executive order that is intended to standardize the use of controls on unclassified information across the government.

Judge Martin L.C. Feldman Named to the FISA Court

The Chief Justice of the United States has appointed Judge Martin L.C. Feldman of the Eastern District of Louisiana to a seven-year term on the Foreign Intelligence Surveillance Court, effective May 19, 2010.  He replaces Judge George P. Kazen, whose term on the Court ends this month.

Judge Feldman’s appointment to the FISA Court has not been publicly announced, but it was confirmed for Secrecy News on Friday by Mr. Sheldon L. Snook of the DC District Court, who also serves as a spokesman for the secretive FISA Court.

The FISA Court reviews and approves government applications for counterintelligence surveillance and physical search under the Foreign Intelligence Surveillance Act.  The updated Court membership for 2010 may be found here.

Judge Feldman was appointed to the bench by President Reagan in 1983.  Among his various other credentials and affiliations, he has served as an advisor to the “Court Appointed Scientific Experts” program of the American Association for the Advancement of Science, which assists courts in identifying scientific experts who can serve in judicial proceedings.

Judge Feldman was in the news earlier this year after he ruled in favor of the non-profit journalism organization ProPublica, finding that it had not committed libel in a news story about the mistreatment of medical patients following Hurricane Katrina.  The news story in question, written by ProPublica reporter Sheri Fink and published in the New York Times Magazine, subsequently won a Pulitzer Prize for Investigative Reporting.

Drake Leak Case Raises “Novel” Legal Issues

The pending prosecution of former National Security Agency official Thomas A. Drake, who was alleged to be a source of classified information in a series of newspaper articles about the NSA, will present “novel” legal issues for the court to consider, prosecutors and defense attorneys said in a joint motion last week.

“The indictment raises complex factual and legal issues and novel questions of law relating to, among other things, the retention of classified materials,” they wrote in an April 29 motion (pdf) to waive the right to a speedy trial.

Unlike former DoD official Larry Franklin in the troubled AIPAC case (which was abandoned by the government before trial last year), Mr. Drake was not charged with unauthorized disclosure of classified information.  Instead, he is accused of “willful retention of classified information.”  The precise nature of this offense, and the threshold for culpability in this case, remain to be litigated.

“The prosecution of this case will involve classified documents,” the joint motion stated, and the defense “may involve classified documents,” necessitating that defense counsel obtain the required security clearances.  “The pre-indictment investigation in this case spanned more than two years,” the motion noted, though defense counsel was not appointed until after the indictment (pdf) issued.

A trial date has been tentatively scheduled for October 18, 2010.