Posts from May, 2011

Fifty Subpoenas Sought in Sterling Leak Case

Updated below

Prosecutors in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to the press, asked a court (pdf) this week to provide 50 blank subpoenas requiring testimony at a September 12 hearing in the case.  The intended recipients were not identified.

“50 subpoenas seems like a hell of a lot,” said an attorney who has been an observer of the case. “I know who some of the witnesses likely could be, but it doesn’t amount to 50! Of course, [the subpoenas] could also be used for documents.”

Last week prosecutors also filed a mysterious motion (pdf) to depose an unidentified prospective witness.  After the sealed motion was filed on May 12, the court issued an order (pdf) affirming that it was “sufficiently sensitive that it should not be part of the public record.”  However, Judge Leonie M. Brinkema added that “there is no reason why defendant or defense counsel should be prevented from viewing [it].”

Yesterday, the government abruptly withdrew (pdf) the motion.  No explanation was offered on the record.

The fact that the judge used the term “sensitive” to describe the motion and that at the same time she deemed it appropriate to share with the defendant and his counsel suggests that it was not classified and that its sensitivity was attributable to some other factor.  But what?

One immediately thinks of the possibility of a deposition directed at the press, and specifically at New York Times reporter James Risen, with whom Mr. Sterling is alleged to have had a confidential source relationship.

But “I doubt it is a subpoena for the media,” said the observer. “Why would the government have any more success with that for trial than it did pre-trial?”  An earlier subpoena to Mr. Risen was quashed last year by Judge Brinkema, as reported in Politico.

The prospective witness “could also be someone who they anticipate will be unavailable in September (perhaps overseas) or is seriously ill and perhaps is not expected to be around for the trial,” the observer said.

At an April 8 hearing in the case, prosecutor William M. Welch alluded to “potential witness issues” that could make it impossible to proceed with the case, the Associated Press reported.  No details of such issues were provided.

Update: Reporter James Risen was in fact subpoenaed on May 23. See this government motion (pdf) to compel his testimony.

DNA Testing in Criminal Justice, and More from CRS

“Increasing awareness of the power of DNA to solve crimes has resulted in increased demand for DNA analysis,” according to a new report (pdf) from the Congressional Research Service, “which has resulted in a backlog of casework.”

“Some jurisdictions have started to use their DNA databases for familial searching, which involves using offender profiles to identify relatives who might be perpetrators of crimes,” the report said  See “DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues,” May 2, 2011.

Other new CRS reports include “The Global Challenge of HIV/AIDS, Tuberculosis, and Malaria” (pdf), May 3, 2011, and “U.S. Global Food Security Funding, FY2010-FY2012″ (pdf), April 28, 2011.

Government Insists on Right to Censor Book

Government attorneys this week asked a court to dismiss a lawsuit brought by author Anthony Shaffer who claimed that his freedom to publish a memoir of his military service in Afghanistan had been violated.  The government said that Mr. Shaffer’s book, “Operation Dark Heart,” which appeared last September in censored form, contained properly classified information which the author has no right to publish.

What makes the case doubly strange is that uncensored review copies of the book are in circulation, along with the redacted version that has become a best seller.  As a result, the case provides a unique opportunity for the public to assess the quality of official classification practices in real time by comparing the two (pdf).

The government has “unlawfully imposed a prior restraint upon the plaintiff by obstructing and infringing on his right to publish unclassified information,” author Shaffer stated in his December 14, 2010 complaint (pdf) against the Department of Defense and the CIA.

Not so, said the Justice Department in its new motion to dismiss (pdf), dated May 16.  The book contains classified material and “Plaintiff has no First Amendment right to publish classified information.”

This week the government also told Mr. Shaffer’s attorney, Mark S. Zaid, that several previously censored words or sentences in the book could now be disclosed.  “While classified eight months ago, [they] no longer remain classified.”  So, for example, the Justice Department said that this sentence was properly classified last September but is now unclassified and may be made public:

“Dawn was an awkward time of day when night-vision goggles were not effective, and it was hard to distinguish anything more than gray and purple shapes.”

A listing of other newly declassified words and sentences in the book was provided by the Justice Department on May 16.

A side-by-side presentation of several censored and uncensored pages from Mr. Shaffer’s book, including some passages that have since been declassified and some that have not, may be found here (pdf).

See also “Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010.

Transforming Classification, or Not

The Public Interest Declassification Board, a White House advisory body, was asked by President Obama to develop recommendations for a “fundamental transformation” of the national security classification system.  The Board developed several proposals of its own and solicited others from interested members of the public.  All of those, including one from the Federation of American Scientists, have now been posted online for public comment.

The Board will hold a public meeting on May 26 at the National Archives to discuss the proposals.

While well-intentioned, the process suffers from several limitations.  First, the President did not specify what manner of “transformation” he had in mind.  This is problematic because the path selected for transformation naturally depends on the desired goal.  Second, the Board has no particular influence or leverage that it can exert to advance its ultimate recommendations.  Even at the White House, most relevant national security personnel seem to be unaware of or uninterested in the Board’s deliberations.  Finally, there is no internal incentive to drive transformation and no visible leadership to compel it.

In truth, the classification system is undergoing transformation at every moment, but mostly in undesirable ways.  Thus, during President Obama’s first full year in office, the number of “original classification decisions,” or new secrets, grew by 22.6 percent, according to the latest annual report (pdf) from the Information Security Oversight Office.

Intelligence Agencies Are Told to Cooperate with GAO

An expanded role for the Government Accountability Office (GAO) in oversight of the U.S. Intelligence Community (IC) may soon become a reality as the result of an official directive that requires intelligence agencies to work with auditors from the GAO, the investigative arm of Congress.

“It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” affirmed Director of National Intelligence James R. Clapper in the new Intelligence Community Directive 114 on “Comptroller General Access to Intelligence Community Information” (pdf). The Comptroller General is the director of the GAO.

“Generally, IC elements shall cooperate with GAO audits or reviews and make information available to appropriately cleared GAO personnel,” the directive added.  The directive was developed in response to a requirement in the 2010 Intelligence Authorization Act.  A copy was obtained by Secrecy News.

There are, however, significant limitations on the newly mandated cooperation.  For example, “Information on intelligence sources and methods” — a notoriously elastic term — “and information related to covert action shall not be provided” to GAO.

There is also a loosely defined provision that would exclude GAO from access to information on “core” intelligence capabilities:  “Information that falls within the purview of the congressional intelligence oversight committees generally shall not be made available to GAO to support a GAO audit or review of core national intelligence capabilities or activities, which include intelligence collection operations, intelligence analyses and analytical techniques, counterintelligence operations, and intelligence funding,” the directive says.

That passage is “the key area in the directive that gives us concern,” wrote Gene L. Dodaro, the Comptroller General, in an April 28 letter (pdf) to the DNI.

“Given historical experience, we are concerned that agencies might interpret the language regarding ‘core’ national intelligence capabilities and activities to apply to a broader range of audits and reviews than ODNI intends,” Mr. Dodaro wrote.  “In fact, agencies have in the past denied GAO access to requested information based on a very expansive view of what ‘intelligence’ entails.”

That language in the directive, “if interpreted broadly, could significantly hinder GAO’s ability to conduct related work that we are routinely requested by the Congress to do,” he wrote.

On the whole, however, Mr. Dodaro of GAO welcomed the new directive.  He said that it “establishes a presumption of cooperation with GAO, including a process for exploring alternative means of accommodating GAO requests for particularly sensitive information; requires timely responses to GAO requests; requires resolution of access disputes at the lowest possible organizational level; and requires communication with GAO, including notification of any delays in responding to requests for information.”

The new Intelligence Community Directive 114 will take effect on June 30.  It was transmitted to Congress, along with the comments of the Comptroller General, on April 29.

The final version of the directive “is better than the horrible first cut,” a congressional official said. An initial draft of the directive last March was deemed to be “shockingly bad” from a congressional perspective. (“DNI Drags Heels on GAO Access to Intelligence,” Secrecy News, March 30, 2011.)

“GAO is in a better position with the [new DNI] protocols than without them — it’s just not entirely clear how much better,” the official told Secrecy News.  “An awful lot depends on how individual IC elements choose to interpret” the language about access to “core” intelligence capabilities. “I’ve read that long, multi-clause sentence dozens of times and come away with a different take every time.”

“It will be very interesting to see how the new protocols are actually implemented.  GAO’s moribund FBI counter-terrorism job is going to be the first test case.”  He was referring to a pending review of counterterrorism programs at FBI that was scuttled due to the FBI’s refusal to cooperate with GAO auditors.  Sen. Charles Grassley (R-ID) complained last year that “The [Department of Justice] Office of Legal Counsel is arguing that GAO does not have the authority to evaluate the majority of FBI counterterrorism positions, as these positions are scored through the National Intelligence Program (NIP) Budget.”

But that obstacle should now have been eliminated.  The new directive states explicitly that IC elements shall not “withhold information solely because the information relates to a program that is funded by the NIP.”

“If the Department of Justice doesn’t play ball, it will show the protocols don’t mean anything,” the congressional official said.  “But my read of them is that they give GAO a clear path forward to finally do the work.”

The Federation of American Scientists favors a greater GAO role in intelligence oversight as a way to augment the limited capacity of the congressional oversight committees.  I discussed the public interest in such an arrangement in testimony (pdf) at a February 29, 2008 hearing of the Senate Committee on Homeland Security and Governmental Affairs.

A Close Look at the Thomas Drake Case

An insightful account of the pending prosecution under the Espionage Act of former National Security Agency official Thomas A. Drake appears this week in The New Yorker.  Author Jane Mayer delves deeply into the origins of the case stemming from Drake’s critical view of NSA management and surveillance practices. She explores the unfolding consequences of the case and its larger significance.

Among the article’s many striking observations on the Drake case is the concluding quote from Mark Klein, a former AT&T employee who exposed warrantless surveillance activity by the Bush Administration. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”

See “The Secret Sharer” by Jane Mayer, The New Yorker, May 23, 2011.

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In Drake Leak Case, Govt Seeks to Block Unclassified Info

The government is seeking to limit the disclosure of unclassified information as well as classified information about the National Security Agency at the upcoming trial of former NSA official Thomas A. Drake, who is accused of unlawful retention of classified documents that were allegedly provided to a reporter.

Under the provisions (pdf) of the Classified Information Procedures Act (CIPA), as expected, prosecutors have asked the court to protect certain classified information from disclosure at trial by proposing substitutions, subject to court approval.

But in an unprecedented legal maneuver, they said that some unclassified information concerning NSA should also be kept off the record.  Defense attorneys told the court that the move was outrageous.

“One month from trial, and one year after the Indictment issued in this case, the government has asserted, for the first time, an evidentiary privilege under the National Security Agency Act of 1959 that it claims authorizes the Court to redact, or insert substitutions for, relevant unclassified evidence that will be introduced during the upcoming criminal trial,” wrote public defenders James Wyda and Deborah L. Boardman on May 10 (pdf).  “There is no authority for this unprecedented assertion in the context of a criminal trial.”

Prosecutors said (pdf) their position was legitimate because “NSA possesses a statutory privilege that protects against the disclosure of information relating to its activities.”  The statute exempts the Agency from any required “disclosure of the organization or any function of the National Security Agency….”  Prosecutors said CIPA permits them to invoke this privilege for unclassified information, along with any other privilege that might be germane.

The NSA Act exemption cited by the government is most commonly used in Freedom of Information Act cases to deny access to unclassified information.  It has never been used to exclude information in a criminal case, the defense said.  Even if it were permitted to be invoked in this case, it requires a detailed affidavit to support its use in each instance and no such affidavits have been produced.

“Neither CIPA nor the National Security Agency Act confers courts with the authority to require substitutions for unclassified, relevant evidence in a criminal case,” the defense attorneys said.  They asked the court to block the move or, failing that, to require the government to identify with specificity the reasons why disclosure of the unclassified information would harm national security.

The current pre-trial wrangling in the Drake case illustrates at least two things.  First, the government is pursuing the matter aggressively at the tactical level;  it is fighting to win, not just going through the motions.  (The same, of course, may be said of the defense.)  And second, this case — and each of the other pending leak prosecutions — may be of momentous importance not only to the defendant.  Each proceeding has the potential to establish new precedents and new procedures that will perturb the current understanding of the law, and thereby make future leak prosecutions either easier or harder.

How to Conduct Classified Discovery Interviews

In preparation for the trial of Jeffrey A. Sterling, a former CIA employee who is accused of unauthorized disclosure of classified information, prosecutors this week wrote to the defendant’s attorney explaining how pre-trial interviews of potential witnesses in the case are to be conducted.

First of all, “If you intend to discuss classified information during an interview, the potential witness must possess the requisite security clearances.”  But “You may not rely on the representations of the potential witness as to the status of that person’s clearances,” wrote U.S. Attorney Neil H. MacBride (pdf) on May 9.  We will verify whether the potential witness has the requisite clearance.”

You may not ask “the true identity of covert employees.”  You may not discuss “the background of covert employees.”  You may not ask questions “about intelligence operations other than that which has been disclosed to you in the discovery materials.”

And so on.  “With these restrictions, which we have reviewed with intelligence officials, we believe that you may conduct interviews with potential witnesses consistent with the Protective Order previously entered by the Court,” the US Attorney wrote.

F-35 Selected Acquisition Report Disclosed

The latest annual report to Congress (pdf) on the F-35 Joint Strike Fighter Program details the soaring costs and deferred production schedule associated with the program.  The report, which has not been publicly released, outlines total program costs from last year as well as per-aircraft costs and planned annual spending rates.

It’s “a useful primer on the Pentagon’s most expensive weapons program,” said one close observer of defense procurement.

A copy was obtained by Secrecy News.  See the 2010 Selected Acquisition Report (SAR) for the F-35, April 2011.