Posts from March, 2011

Overclassification is “Irrelevant,” Drake Prosecutors Say

Former National Security Agency official Thomas A. Drake, who was charged last year with unauthorized retention of classified information about controversial NSA programs, should not be allowed to argue in court that overclassification is widespread or that he was engaged in whistleblowing in the public interest, government attorneys said last week.

In a February 25 pre-trial motion (pdf), prosecutors asked the Court “for an order barring the defense from introducing any evidence, presenting any defense, or making any argument relating to the legality, constitutionality or propriety of the rules and regulations governing the disclosure of classified information, including any opinion that the intelligence community ‘overclassifies’ information.”

“The government anticipates that the defendant… may claim that the current classification system is overly inclusive and protects too much information.  Alternatively, the defendant may claim that the current classification system is ineffectual or illegal and prevents his ability to air allegations of waste, fraud and abuse to the attention of the public,” the motion stated.

“Any thoughts that the defendant may have had that the current regulatory scheme overclassifies information is [sic] irrelevant.  It does not matter that the defendant may have believed that the current regulatory scheme classified too much information.  His obligation in protecting classified information was to work within the clear set of rules governing the dissemination of potentially classified information.”

Prosecutors went on to argue that their motion to exclude all discussion of overclassification from Mr. Drake’s trial was actually in the best interests of the defendant, because they said any such discussion would reflect badly on him.

“If anything, the defendant’s thoughts that the current classification system overclassifies information would be incriminatory, not exculpatory, because that evidence would tend to show that he did not agree with the clear rules governing the dissemination of classified information and, therefore, willfully brought classified information home with him.”

In a separate motion (pdf) last week, prosecutors also asked the Court to exclude any claims that Mr. Drake’s alleged actions were driven by a need to inform the public.

“The government believes that the defendant may seek to argue or introduce evidence that his conduct was justified or that his claims [about certain NSA programs] were meritorious.  Because of the need to expose NSA waste and abuse regarding Classified Programs A and B, the [anticipated defense] argument proceeds, the defendant’s possession of classified documents was necessary, justified, or well-intentioned, and thus non-criminal.”

“This Court should reject any attempt to introduce argument or evidence on these points,” prosecutors urged.

Meanwhile, the Drake defense filed several substantial motions of its own arguing, among other things, that the espionage statute under which Mr. Drake was charged (18 USC 793e) “is a statute of alarming breadth and little definition” and that it is a poor fit for the actions he allegedly committed.

“Mr. Drake engaged in public criticism.  He was not motivated by private financial gain — he never sold any information.  Instead, he was prompting public debate about waste and inefficiency at NSA…. The Indictment thus describes speech of the highest First Amendment caliber.  The government may not insulate itself from Mr. Drake’s criticism by claiming that the information related to national security,” the defense argued (pdf).

In another pending “leak” case, that of former State Department contractor Stephen Kim, prosecutors last week filed an unyielding rebuttal (pdf) to several defense pre-trial motions seeking dismissal of that case on First Amendment and other grounds.

“To the extent that the defendant’s conduct constitutes speech, that speech is wholly unprotected by the First Amendment,” the Kim prosecutors said.  “Speech used willfully to convey national defense information to any person not entitled to receive it is speech effecting a crime [which is] undeserving of First Amendment protection.”

Also last week, 22 additional charges (pdf) were preferred against Pfc. Bradley E. Manning, including an allegation that he unlawfully downloaded classified information and did “knowingly give intelligence to the enemy, through indirect means” in violation of 18 USC 793e and other statutes.

Collectively, these cases embody an unresolved dispute over the proper understanding of the espionage statutes and their application to the unauthorized handling and disclosure of classified information.

See also “Despite openness pledge, President Obama pursues leakers” by Josh Gerstein, Politico, March 7.

Number of DoD Contractors in Afghanistan at a Record High

The number of private security contractors employed by the Department of Defense in Afghanistan has reached a new record high, according to DoD statistics in a recently updated report (pdf) from the Congressional Research Service.

“In Afghanistan, as of December 2010, there were 18,919 private security contractor (PSC) personnel working for DOD, the highest number since DOD started tracking the data in September 2007. The number of PSC personnel in Afghanistan has more than tripled since June 2009,” the CRS report said.

“The United States relies on contractors to provide a wide variety of services in Afghanistan and Iraq, including armed security. While DOD has previously contracted for security in Bosnia and elsewhere, it appears that in Afghanistan and Iraq DOD is for the first time relying so heavily on armed contractors to provide security during combat or stability operations.”

“Much of the attention given to private security contractors (PSCs) by Congress and the media is a result of numerous high-profile incidents in which security contractors have been accused of shooting civilians, using excessive force, being insensitive to local customs or beliefs, or otherwise behaving inappropriately.

“Some analysts believe that the use of contractors, particularly private security contractors, may have undermined U.S. counterinsurgency efforts in Afghanistan and Iraq,” the report said.

See “The Department of Defense’s Use of Private Security Contractors in Afghanistan and Iraq: Background, Analysis, and Options for Congress,” February 21, 2011.

Official reporting on the conduct of the war in Afghanistan is grossly inadequate to inform policymaking or to provide public accountability, wrote Anthony Cordesman of the Center for Strategic and International Studies in a recent assessment of available metrics.

“The war in Afghanistan is now in its tenth year. In spite of that fact, the US, allied countries, the ISAF, and the UN have failed to develop credible reporting in the progress of the war, provide meaningful transparency on the problems and challenge it faces, and a meaningful plan for the future. Moreover, since June 2010, the unclassified reporting the US does provide has steadily shrunk in content – effectively ‘spinning’ the road to victory by eliminating content that illustrates the full scale of the challenges ahead,” Cordesman wrote.

Bush OLC Opinions on Wiretapping Still Under “Review”

Updated below

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration’s warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

“I just want to reiterate how important it is for the legal justifications for this program to be withdrawn,” said Sen. Feingold at a June 17, 2009 hearing of the Senate Judiciary Committee, referring to the warrantless wiretapping program.  “I am concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect.  And if you believe, as I think the President [Obama] has indicated in the past, that the program was illegal, they cannot stand.”

Attorney General Eric Holder told Sen. Feingold at that June 2009 hearing that he had asked the Office of Legal Counsel to review the opinions, and to release them publicly to the extent possible.  “It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time.”

In an October 2009 response (pdf, at p. 11) to a follow-up question for the record, the Department of Justice told Sen. Feingold that “the review processes described in your question are still ongoing.”

In a March 2010 response (pdf, at p. 23) to the same question, DOJ said “The Department is still conducting its review…. No one in the Department has made any affirmative decision about the treatment of the OLC opinions.”

Well, “What is the status of that review?  When will it be complete?” asked Sen. Feingold yet again, following an April 2010 hearing.

In a December 2010 response (pdf, at pp. 29-30) that has just been published, DOJ repeated that “The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review.” (at pp. 29-30)

But a review that continues indefinitely is practically indistinguishable from no review at all.  And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue.  All that remains is the Senator’s warning about the hazards of embracing “unsupportable claims of executive power.”

Update: On March 18, 2011 the Justice Department released a heavily redacted version of a May 2004 OLC opinion on warrantless surveillance in response to an ACLU FOIA lawsuit.

ISOO Director Bosanko Promoted to New Role

William J. Bosanko, the director of the Information Security Oversight Office (ISOO), has been appointed to lead a new organization at the National Archives called Agency Services.  In that capacity, he will “lead the National Archives efforts to service the records management needs of Federal agencies, and represent the public’s interest in the accountability and transparency of these records,” said Archivist of the United States David S. Ferriero in a news release yesterday.

As the new Executive for Agency Services, Mr. Bosanko will be responsible for several existing Archives components, including Records Management Policy & Oversight, the Federal Records Center Program, the Office of Government Information Services, the National Declassification Center, and ISOO.  It is a large and important portfolio, and the appointment reflects the high regard in which Mr. Bosanko is held inside and outside of government.

But it also means that he will no longer be the Director of ISOO.  Although he will now be the ISOO Director’s superior, he will no longer possess the Director’s classification oversight authorities and responsibilities, which derive from an executive order.

A new ISOO Director will have to be chosen and put in place.  At a time of profound transformation of the classification system (one may still hope), the transfer of leadership at ISOO could create some worrisome instability.

“I have committed 12 years to ISOO and believe deeply in its mission,” Mr. Bosanko said.  “Please know that I will do my best to look out for it in my new role.”

Public Access to CRS Reports Urged

Dozens of public interest groups wrote to the Librarian of Congress last week to urge him to appoint a new Director of the Congressional Research Service who would work with Congress to promote public access to CRS reports.

“The public needs access to these non-confidential CRS reports in order to discharge their civic duties,” the letter (pdf) stated. “American taxpayers spend over $100 million a year to fund the CRS, which generates detailed reports relevant to current political events for lawmakers. But while the reports are non-classified, and play a critical role in our legislative process, they have never been made available in a consistent and official way to members of the public.”

There are several large collections of CRS reports that have been placed online by public interest groups, including the Federation of American Scientists.  But Congress has prohibited CRS from providing its products directly to the public.  And the current CRS director, Daniel Mulhollan, who is retiring in the next few weeks, has actively supported that non-disclosure policy.

What has happened under Mr. Mulhollan’s tenure is that CRS reports have been commodified.  Instead of being made freely available to the public, they are marketed by vendors.  A typical ten-page report may be sold for as much as $29.95 ($19.95 for students!).  Mr. Mulhollan has produced a litany of arguments (pdf) against public distribution of CRS reports, but all of them are mooted by the simple fact that the reports are distributed anyway– for a fee.

The appointment of a new CRS Director will be an opportunity to chart a new, more sensible course for the congressional support agency, to include free public distribution of non-confidential reports.

Some noteworthy new CRS reports include the following (all pdf).

“U.S. Response to the Global Threat of Tuberculosis: Basic Facts,” February 22, 2011.

“U.S. Response to the Global Threat of Malaria: Basic Facts,” February 22, 2011.

“U.S. Response to the Global Threat of HIV/AIDS: Basic Facts,” February 22, 2011.