Posts from July, 2011

Handling of Drake Leak Case was “Unconscionable,” Court Said

The government’s treatment of former National Security Agency official Thomas Drake was abusive and akin to acts of British tyranny in pre-Revolutionary War days, said Judge Richard D. Bennett at the July 15 sentencing hearing which concluded the Drake case, one of the Obama Administration’s record number of anti-”leak” prosecutions.  A transcript (pdf) of that hearing was prepared at the request of Secrecy News.

Mr. Drake was originally suspected of leaking classified information to a reporter and had been charged with ten felony counts, all of which he denied.  The prosecution was unable to sustain any of those charges, and the case was settled after Mr. Drake pleaded guilty to a misdemeanor charge of exceeding authorized use of a government computer.  He was sentenced (pdf) at the hearing to a year of probation and 240 hours of community service.

The hearing transcript is a gripping document, with moments of high dramatic tension and unusual poignancy.

Much of the tension arose from the recommendation of the relentless prosecutor, William M. Welch, that Mr. Drake should be fined an additional $50,000 to serve as a deterrent and to “send a message” to other government employees who might be inclined to follow in his footsteps.

Mr. Welch complained that Mr. Drake had “received a $10,000 prize for having been a whistleblower,” namely the Ridenhour award, which was presented to Mr. Drake in April 2011.

Mr. Welch said that Mr. Drake should therefore be fined at least $10,000 in order to repudiate and cancel whatever “profit” and public respect he had gained from his whistleblowing activity, in which he exposed questionable management practices at the National Security Agency.

“He shouldn’t walk away in the sense of a comparison between the fine and this award with any semblance of a notion that he’s profited in any way from his conduct,” Mr. Welch said. “At a minimum, the fine ought to be $10,000, but I would urge the court to impose the $50,000.”

But the judge wasn’t having it.

“There has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way,” he said decisively.

Judge Bennett further rebuked the government for its handling of the case.  From the time when Drake’s home was searched in 2007, it took two and a half years before Drake was indicted, “and then over a year later, on the eve of trial, in June of 2011, the government says, whoops, we dropped the whole case.”

“That’s four years of hell that a citizen goes through,” the judge said.  “It was not proper. It doesn’t pass the smell test.”

“I don’t think that deterrence should include an American citizen waiting two and a half years after their home is searched to find out if they’re going to be indicted or not,” Judge Bennett said. “I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on against general warrants of the British. It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes. And when it happens, it should be resolved pretty quickly, and it sure as heck shouldn’t take two and a half years before someone’s charged after that event.”

Mr. Welch said he was unable to account for the chronology of the case.  “With respect to the timeframe, you know, I can’t explain that to the court.”

Judge Bennett praised all of the attorneys involved in the case, and singled out Mr. Drake’s public defenders, James Wyda and Deborah L. Boardman.

“Your representation of your client has been at the highest levels of professionalism and at the highest levels of legal competence,” he said.

“There are not two lawyers in the country who could have done a better job for you, Mr. Drake, than the two lawyers who represented you here in this case. And I think it’s been a great showing on behalf of the Public Defender’s Office, which is not the least bit of a surprise to this legal community. But to the extent it has become known in any sense nationally it is well deserved because the reputation of Miss Boardman and Mr. Wyda are at the highest level, and I commend both of you for an outstanding representation of your client,” Judge Bennett said.

“And Mr. Drake, as to that, this matter is closed and I wish you the best of luck in the rest of your life.”

Former ISOO Director Seeks to Challenge Secrecy of Drake Document

Although the indictment of Thomas Drake on charges of mishandling classified information has been dismissed, the case continues to generate significant new ripples.

Today, the Drake defense team filed a motion (pdf) to remove the court-imposed restrictions on one of the documents that Mr. Drake was accused of unlawfully possessing so that the purported classification of the document could be formally challenged by one of the defense’s expert witnesses — who is none other than the former head of the organization that oversees the entire classification system.

“The defense respectfully requests an Order of the Court that permits defense expert witness, J. William Leonard, the former Director of the Information Security Oversight Office (ISOO), to file a formal letter of complaint to the current Director of ISOO, John P. Fitzpatrick, regarding the government’s decision to classify and its reasons for classification of the document charged in Count One of the Indictment, entitled ‘What a Success’.”

Subsequent to the April 2010 indictment of Mr. Drake, the document was declassified (but not disclosed) in July 2010.  But the defense position is that it was never properly classified.

“If this case had gone to trial, Mr. Leonard was prepared to testify that the ‘What a Success’ document did not contain classified information and never should have been classified,” the defense motion said.

Therefore, “the defense is seeking an Order of the Court allowing him to disclose the unclassified information for the purpose of filing a complaint with ISOO and to discuss the issues raised in his complaint with any investigating authorities.”

None of this can really help or hurt Mr. Drake, whose case is concluded.  But the latest defense motion could lead to the correction of an error in the classification system.  It might even help to catalyze a broader reconsideration of classification policy at the NSA and elsewhere in government.

ACLU: Congress Must Act to Curb Secrecy

“Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture,” the American Civil Liberties Union urged in a new report on government secrecy.

“The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could,” wrote Mike German and Jay Stanley, the authors of the ACLU report.  “It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls.”

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience.  Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more.  It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

The title of the report sums it up:  “Drastic Measures Required:  Congress Needs to Overhaul U.S. Secrecy Law and Increase Oversight of the Secret Security Establishment” by Mike German and Jay Stanley, July 2011.

The report is fundamentally an act of good citizenship.  It identifies a significant problem, proposes a set of potential solutions, and presents a series of arguments about why those solutions should be adopted.  Even readers who do not identify as civil libertarians or do not share the premises of the report are likely to learn something from it.

One may also end up disagreeing with its conclusions or recommendations.  For example, in arguing for a greater congressional role in reforming government secrecy policy, the authors write that “We cannot expect the [executive branch] officials and agencies that benefit from lack of accountability to reform themselves.”  This is logical and makes intuitive sense — but oddly enough, it is not consistently confirmed by experience.

To the contrary, some of the most significant and far-reaching secrecy reforms that have been achieved to date have been the result of internal executive branch actions.  One thinks of the Department of Energy Openness Initiative of the mid-1990s, but also of the declassification of the aggregate intelligence budget, the declassification of the size of the nuclear weapons stockpile, and other “unilateral” executive branch actions.  A proper theory of secrecy policy must account for such counterintuitive moves.

Conversely, an increased role for Congress in secrecy policy under current circumstances might lead to greater secrecy, not less.  The authors sensibly recommend a repeal of the Kyl-Lott Amendment, which effectively prohibited the bulk declassification of historical records.  But the reason a repeal is called for is that Congress enacted such a restrictive measure in the first place, just as it has enacted many other new restrictions on disclosure under the Freedom of Information Act, and similar barriers to public access.  The peculiar congressional affinity for national security secrecy needs to be understood and factored in.

But this is a discussion worth having.

It is certainly true, as the ACLU authors write, that “The Constitution provides ample tools for Congress and the courts to check executive abuses of authority.  Their failure to effectively use these tools leaves these branches of government with much of the blame for the misguided national security policies the executive pursues in secret.”

Book: Defending Congress and the Constitution

Public cynicism about politics in general and about Congress in particular should not be allowed to obscure an appreciation of the vital role of Congress in our system of government, writes constitutional scholar Louis Fisher in his latest book, “Defending Congress and the Constitution.”

“Without a strong Congress, we cannot speak of democracy,” he says.  “Safeguarding individual rights is often assumed to reside almost wholly with the judiciary, but history offers scant support for that position.  Congress frequently takes the lead in defending personal rights and minorities that are not protected in the courts.”

Fisher explores a range of historical and contemporary episodes involving congressional investigations and oversight, the use of budget authority, and the role of Congress in national security policy, including all kinds of lore he gathered over nearly four decades as a senior specialist at the Congressional Research Service.

Fisher recognizes the diminished esteem in which Congress is held by many members of the public and, not coincidentally, the decline in Congress’ own institutional self-confidence.  His intent is to challenge this erosion and to help refurbish the highest traditions of congressional leadership.

“Congress has a good story to tell in defending the Constitution and protecting individual freedoms.  Lawmakers need to tell it.”

In “Defending Congress and the Constitution” (University Press of Kansas, 2011), Fisher hopes to remind readers of that neglected story.

NSA “Declassified” Publicly Available Text on Cryptology

Updated below

Last month the National Security Agency announced the declassification of various historic records as evidence of its “commitment to meeting the requirements” of President Obama’s policy on openness and transparency.  Among the newly declassified records was a 200 year old publication on cryptology.  (“NSA Declassifies 200 Year Old Report,” Secrecy News, June 9, 2011.)

NSA listed the 1809 study as a “highlight” of the new releases in a press statement, and the National Archives featured it in a promotional blog posting.  But upon inspection, it turns out that the newly released document was already in the public domain and freely available online.

Instead of providing cause for celebration or congratulation, the NSA “release” is a disturbing sign of futility and irrelevance in the nation’s declassification program.

The June 8 NSA press statement hailed the disclosure of “early publications on cryptography, including ‘Cryptology: Instruction Book on the Art of Secret Writing’ from 1809.  In fact, the document is a German work and its real title is “Kryptographik: Lehrbuch der Geheimschreibekunst…” by Johann Ludwig Klüber (1762-1837), who was the first Professor of Law at the University of Heidelberg.

According to a June 14 blog post by James Rush of the National Archives, this work was among the German government records that were seized by U.S. forces after the defeat of Germany in World War II, and it found its way into U.S. intelligence files.

Though the NSA press statement seemed to indicate that the full publication was being disclosed, the material that was released by NSA was actually just a 40 page abstract and excerpt of the author’s much longer work.  A copy of what was transferred to the National Archives is now posted here (pdf).

The cover sheet indicates that the document was classified as Secret, and that it was formally declassified on November 12, 2010 by D. Janosek, NSA Deputy Associate Director for Policy and Records, along with a second reviewer who was identified only by his or her initials.

But what neither the National Security Agency nor the National Archives seemed to realize is that not only had the source material never been classified — and so could not properly be “declassified” — but that it was already publicly available.  The full 532 page text of the 1809 study — not just a 40 page abstract — was actually digitized several years ago and published online through Google Books.

Two obvious inferences may be drawn from this episode.  First, there is extravagant overclassification at the National Security Agency, as in many other corners of government.  This means that access restrictions are being imposed on records that do not require or deserve such protection.  Second, there is a lack of effective oversight mechanisms to promptly identify and correct such instances of overclassification.  There are always going to be classification errors, so there need to be robust error correction mechanisms.  Ideally, Google Books would not be one of them.

Update: On August 19, 2011 the NSA issued a supplementary press release (pdf) that added some significant clarifications and contextual information regarding the declassified document. In particular, the NSA noted that the newly released document included a hand-written cryptography example that did not appear in the Klüber book.

New FRUS Volume Declassified After Four Year Review

The latest volume of the State Department’s Foreign Relations of the United States (FRUS) series documents U.S. Mideast policy before, during and immediately after the 1973 Arab-Israeli war.  It was published this month following a four year declassification review that lasted from 2006 to 2010.

Among numerous topics of historic and current interest, the 1200 page volume (pdf) touches glancingly on the issue of Israel’s nuclear weapons program.

“Do Egypt and Israel have the capability to make nuclear weapons?” asked Sen. Mike Mansfield at a November 27, 1973 White House meeting (page 993).  “Israel has the capability to make small numbers,” answered Henry Kissinger.  “Not Egypt.”  (This exchange was also noted by Amir Oren in Ha’aretz on July 22).

The late Admiral Noel A. Gayler, the former NSA director and advocate of nuclear disarmament who died July 14, is included on the list of “Persons” in the new FRUS volume though his name does not appear elsewhere in the text.

An Update from the National Declassification Center

In the past 18 months, the National Declassification Center has completed processing of less than 5% of the 400 million page backlog of 25 year old historical records that are awaiting declassification.  Still, the Center “remain[s] confident” that it will meet the December 2013 deadline set by President Obama for processing the entire backlog.

The Center has just published a new biannual report outlining its progress to date along with a description of current efforts and challenges ahead.  The report notes that of the 18 million pages that have undergone declassification review at the Center thus far, 92% have been declassified and made available to the public.

DNI Security Official Appointed to be New ISOO Director

In a step that will shape the future course of U.S. government secrecy policy, President Obama approved the appointment of John P. Fitzpatrick, a security official at the Office of the Director of National Intelligence, to be the next Director of the Information Security Oversight Office (ISOO), effective August 1.

The ISOO Director, sometimes referred to as the “classification czar,” is the most senior official (other than the President himself) responsible for oversight of the national security classification system.  The Director monitors agency compliance with classification policies, and leads the development of changes in those policies.  In his oversight capacity, the ISOO Director is authorized and required to act on complaints and suggestions both from within the government and from members of the public.  The President has also empowered the ISOO Director to require the declassification of any information he deems to be improperly classified (though this authority has never been exercised in practice).

Mr. Fitzpatrick is a former director of the DNI Special Security Center, the inner sanctum of security policy within the U.S. intelligence community.  In theory, this background should give him the stature to command attention and respect throughout the far-flung secrecy bureaucracy.

Mr. Fitzpatrick’s credentials as a proponent of secrecy reform are less clear.  But David S. Ferriero, the Archivist of the United States, called him “a strong advocate for information sharing and protection,” and said “he has demonstrated his ability to lead and oversee change both within and beyond the Intelligence Community throughout his career.”

“This experience uniquely positions him to lead ISOO and I look to him to improve transparency, openness, and access while ensuring that classified information is properly protected,” the Archivist wrote in a July 20 announcement to all NARA employees.  (ISOO is a component of the National Archives and Records Administration, though it takes policy direction from the White House.)

Among his professional achievements, it is noteworthy that Mr. Fitzpatrick helped foster significant changes in security clearance policy as director of the DNI Special Security Center.  Cutting against the grain of contemporary practice, he advanced new procedures that “would remove barriers for first- and second-generation Americans to be considered for IC security clearances.”

In some other areas, he seems to have fallen short.  Thus, in December 2010 he told the House Intelligence Committee that the precise number of security clearances throughout the government would be disclosed in a February 2011 report to Congress.  But when it was delivered, the report did not contain the information promised by Mr. Fitzpatrick.  That information — now due in another report — apparently has still not been transmitted.  The ODNI said last week that it was “privileged” and “pre-decisional.”  (See “Total Number of Security Clearances Still Unknown,” Secrecy News, May 27, 2011.)

Mr. Fitzpatrick’s appointment to be the fifth ISOO Director since the organization was established in 1978 comes at a particularly crucial moment in secrecy policy.  The national security classification system is under mounting pressure both to fulfill its core function of protecting genuine national security secrets and to eliminate the spurious accretions of decades of excessive secrecy.  The President has spoken of the need for a “fundamental transformation” of today’s classification system, which is an artifact of Cold War principles, politics and practices, though he did not provide any direction for such a transformation.  An effort is underway to rescind obsolete classification policies through the pending Fundamental Classification Guidance Review, but it is still uncertain whether this process will gain traction and produce results.

Within a fairly short period of time — probably not more than a year or two — it will become clear whether the secrecy system is responsive to such planned and deliberate reforms, or whether it will drift towards failure and irrelevance instead.  Accordingly, the ISOO under Mr. Fitzpatrick’s leadership could become more important than ever as a vehicle for secrecy reform– or it could prove inconsequential.

Leak Prosecutors Criticize Sterling Subpoena to Senate

Government attorneys said last week that a proposal by former CIA officer Jeffrey Sterling to subpoena former staff members from the Senate Intelligence Committee to show that they, not he, leaked classified information was “frivolous” and should be denied.

Prosecutors also suggested that the Sterling defense motion actually strengthened their own argument that New York Times reporter James Risen, to whom Sterling allegedly provided classified information, should be compelled to testify at Sterling’s trial.

“The defense plans to point fingers at other possible ‘suspects’ and ask the jury to speculate that someone other than Sterling was Risen’s source,” prosecutors said in a July 22 response (pdf) to the defense motion for a subpoena to the U.S. Senate.  “And while the defendant certainly has a right to develop and put forth his defense as he sees fit, the only reason he can proceed down this path is because he believes that the government will not be able to compel Risen to identify his source or even testify as to who was not a source.”

“In other words,” prosecutors said, “the First Amendment interests advocated by Risen have become both a sword and shield for the defendant, and he has used the current impasse over Risen’s testimony to accuse falsely other individuals of serious crimes and ask this court to enforce speculative and largely frivolous requests to search for information in support of that defense.  This should not be countenanced,” they argued.

Prosecutors said that the Senate Intelligence Committee has undertaken a search for documents responsive to Mr. Sterling’s request, even in the absence of a subpoena.  They also said that the Committee staff members named by Mr. Sterling denied having provided any information to Mr. Risen.

A transcript of the July 7 court hearing on Mr. Risen’s motion to quash the prosecution’s subpoena to compel him to testify at trial is now available here (pdf).

William M. Welch II, the lead prosecutor in the Sterling case and in the recently concluded prosecution of Thomas Drake, was profiled by Shane Harris in “Obama Administration’s Point Man to Stop Leaks,” Washingtonian Capital Comment blog, July 20.

Export Control Reform, and More from CRS

Congress opposes direct public access to most Congressional Research Service reports, so people who care to read the reports on current policy issues must work around the Congressional barrier.  Some noteworthy new reports from CRS include the following (all pdf).

The U.S. Export Control System and the President’s Reform Initiative, July 14, 2011

A Balanced Budget Constitutional Amendment: Background and Congressional Options, July 8, 2011

Selected Characteristics of Private and Public Sector Workers, July 1, 2011

The Sustainability of the Federal Budget Deficit: Market Confidence and Economic Effects, June 28, 2011

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, June 22, 2011