Posts from September, 2011

CRS Views Congressional Authority to Limit Military Operations

The authority of the President to use military force without congressional authorization and the ability of Congress to limit or regulate such use are discussed in a new report (pdf) from the Congressional Research Service.

At issue are the scope and priority of basic constitutional terms, including the definition of the President’s role as commander in chief, the authority of Congress to declare war, and its ability to appropriate or to withhold funds for military operations.

No final answers can be provided.  However, “it is generally agreed that Congress cannot ‘direct campaigns,’ but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto by refusing to appropriate funds,” the CRS report said.

“To date,… no court has invalidated a statute passed by Congress on the basis that it impinges the constitutional authority of the Commander in Chief, whether directly or indirectly through appropriations,” the report noted. “In contrast, presidential assertions of authority based on the Commander-in-Chief Clause, in excess of or contrary to congressional authority, have been struck down by the courts.”

The political, ideological or institutional obstacles to the independent exercise of constitutional authority by Congress, which may run even deeper than any legal constraints, are not addressed here.

A copy of the new report was obtained by Secrecy News. See “Congressional Authority to Limit Military Operations,” September 8, 2011.

Reporter Risen Argues Against Subpoena in Sterling Leak Case

A government “motion for clarification and reconsideration” of a court order that limited the obligation of reporter James Risen to testify at the upcoming trial of former CIA officer and accused leaker Jeffrey Sterling should be rejected, Risen’s attorneys argued (pdf) yesterday.

There is no need for “clarification” of the court’s July 29 order (pdf), they said, since it is perfectly clear.  Mr. Risen does not need to do more than to authenticate his authorship of a book he wrote, the court said, and to attest to its accuracy.

And there is no legitimate basis for “reconsideration,” they argued, since there has been no intervening change in the law and no evidence of judicial error.

“The Government says nothing… beyond a rehash of the Government’s prior arguments and offers nothing sufficient to alter the balancing of interests already performed by this Court,” Mr. Risen’s attorneys wrote.

Similar arguments against a subpoena were also offered yesterday by Mr. Sterling’s attorneys, who added:  “Every time the Government appeals to this Court to admit some new or additional subject matter of Mr. Risen’s proposed testimony, the Court should be reminded how little evidence the Government really has in this case.”

The prosecution has “a compelling interest in Mr. Risen’s eyewitness testimony” which is “critical to the case,” the government has argued (pdf).  (“Leak Prosecutors Press Again for Subpoena of Risen,” Secrecy News, September 6, 2011).

The latest edition of “The News Media & The Law,” the quarterly publication of the Reporters Committee for Freedom of the Press, includes several articles on the theme of “Journalists, Whistleblowers and National Security.”

A Tribute to Censored Author Anthony Shaffer

Rep. Walter B. Jones (R-NC) paid tribute to military intelligence officer Lt. Col. Anthony Shaffer in a statement entered into the Congressional Record yesterday.

“Col. Shaffer’s storied career has been distinguished by his willingness and ability to work at the cutting edge of our nation’s intelligence community,” Rep. Jones said.

Though it was not mentioned by the Congressman, Shaffer is also the author of a book called “Operation Dark Heart,” which was memorably and ineffectively censored by the U.S. Government.  The Pentagon purchased 10,000 copies of the original version of the book in order to destroy them, but then a small number of uncensored review copies became public anyway.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010)

Social Media and Disasters, and More from CRS

The growing use of social media — such as Twitter and Facebook — in responding to emergency situations is examined in a new report (pdf) from the Congressional Research Service.

“In the last five years social media have played an increasing role in emergencies and disasters,” the report notes. “Social media sites rank as the fourth most popular source to access emergency information. They have been used by individuals and communities to warn others of unsafe areas or situations, inform friends and family that someone is safe, and raise funds for disaster relief.”

While they have still untapped potential for improving emergency communications, social media can also be used — inadvertently or maliciously — to disseminate false or misleading information, the report observes. See “Social Media and Disasters: Current Uses, Future Options, and Policy Considerations,” September 6, 2011.

With few exceptions, congressional leaders of both parties are opposed to allowing direct public access to Congressional Research Service reports like this one.  Perhaps they wish to foster a healthy public skepticism about the validity of official restrictions on government information, or a heightened appreciation for unauthorized disclosures.

At any rate, some recent CRS reports that are not publicly available from CRS include the following (all pdf).

“India: Domestic Issues, Strategic Dynamics, and U.S. Relations,” September 1, 2011. (This report notes in passing the curious statistic that “some 40% of American hotel rooms are owned by Indian-Americans.”)

“Desalination: Technologies, Use, and Congressional Issues,” August 15, 2011.

“U.S. Energy: Overview and Key Statistics,” July 29, 2011.

“U.S. Renewable Electricity Generation: Resources and Challenges,” August 5, 2011.

Joint Chiefs on Legal Support to Military Operations

A newly updated doctrinal publication from the Joint Chiefs of Staff describes the infrastructure of legal review and support to all phases of military operations.

“It is DoD policy that members of the DoD components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.”

“Legal advisors actively participate in the entire planning process from joint intelligence preparation of the operational environment [...], to mission analysis, to course of action development and recommendation, through execution.”  See “Legal Support to Military Operations” (pdf), Joint Publication 1-04, August 17, 2011.

National Security Law: The Casebook

The legal and constitutional framework for military operations, intelligence collection and other national security activities is explored in depth in the new edition of “National Security Law,” the preeminent casebook on <the subject for law students.  It presents concise treatments of dozens of topics — from secrecy to rendition and interrogation — with case studies and questions for discussion.

See “National Security Law” by Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, Fifth Edition, Aspen Publishers, August 2011.

European Council Offers Rebuke to U.S. Secrecy Policy

A draft resolution (pdf) prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

“In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe.  It is to be debated by the full Assembly next month.  See “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations,” provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA.  The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

“The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions,” the draft resolution said.

The document pointed approvingly to Canada’s response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime.  The government of Canada apologized for the episode and provided financial compensation to Arar.  But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the “state secrets” privilege.

“As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms,” the draft resolution said.  The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

“We are confronted with a real cult of secrecy,” the document said. “It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency.”

The resolution praised the role of WikiLeaks in publishing “diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees.”  But it also stated that “It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel” — a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several “basic principles for judicial and parliamentary scrutiny of the secret services” in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, it said, “Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets.”

Scientist Stewart Nozette Pleads Guilty to Attempted Espionage

Stewart Nozette, a space scientist who was deeply involved in many of the nation’s most highly classified technology programs, pleaded guilty to attempted espionage for providing classified information to an undercover FBI agent posing as an Israeli intelligence officer.

According to a “factual proffer” (pdf) presented by the government in court yesterday, “The defendant [Nozette] initially claimed to be wary of providing any classified information to the UCE [Under Cover Employee of the FBI].” But with continued encouragement, “the defendant’s purported concerns were soon assuaged,” the proffer document stated, and he proceeded to exchange classified information for cash.

Nozette, who was privy to dozens of special access programs and compartmented intelligence programs, was also an innovative technologist with an impressive record of achievement.  One of the many unsettling features of his story is that in the past, when I knew him slightly, he was not motivated primarily by a desire for money nor was he oblivious to security.  How and why he changed has not been explained.  See, relatedly, “Nozette and Nuclear Rocketry,” Secrecy News, October 22, 2009.

House Turns to FY2012 Intelligence Authorization Act

The House Intelligence Committee issued its report on the FY2012 intelligence authorization act on September 2, and the bill is expected to go to the House floor on September 9.

The White House issued a veto threat against the bill yesterday based on its opposition to two provisions:  a requirement to produce State Department cables relating to Guantanamo detainees, and a requirement that the Director of the National Security Agency be confirmed by the Senate.

Somewhat oddly, those provisions, which originated in the Senate version of the bill, did not appear in the version reported by the House Intelligence Committee.  Rather, they were included in a “pre-conferenced” version of the bill (pdf) that was intended to expedite handling of the bill by incorporating some Senate provisions and which was provided to the House Rules Committee.  But Intelligence Committee chair Rep. Mike Rogers told the Rules Committee yesterday that he would offer a manager’s amendment on the House floor to remove the provisions that are opposed by the White House, mitigating or eliminating the veto threat.

The most significant features of the pending intelligence bill are contained in a classified annex that is not publicly available.  Among its less significant features, the unclassified bill would require the CIA to prepare a classified official report on the killing of Osama bin Laden (as first reported by Tony Capaccio of Bloomberg News).

“For years to come, Americans will look back at this event as a defining point in the history of the United States,” the House Committee believes, referring to the bin Laden killing.  “It is vitally important that the United States memorialize all the events that led to the raid so that future generations will have an official record of the events that transpired before, during, and as a result of the operation,” the Committee report said.

The House bill would also specify that the Department of Homeland Security’s Office of Intelligence and Analysis, rather than the Department of Homeland Security as a whole, is a member of the U.S. Intelligence Community.

Coincidentally, in an investigation published this week the Center for Investigative Reporting found that the DHS Office of Intelligence and Analysis “has fallen far short of its mission and done little to improve the accuracy and quality of the nation’s intelligence data.”  See “Homeland security office creates ‘intelligence spam,’ insiders claim” by Andrew Becker and G.W. Schulz, America’s War Within, September 5.

The House Intelligence Committee report is silent regarding the Office’s performance.

Leak Prosecutors Press Again for Subpoena of Risen

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is suspected of leaking classified information to author and New York Times reporter James Risen, last week renewed their request (pdf) for a subpoena to compel Risen to testify at Sterling’s upcoming trial.

A July 29 court order, issued by Judge Leonie M. Brinkema, had sharply limited the scope of Risen’s testimony, essentially requiring him only to authenticate his authorship of a book containing classified information concerning Iran’s nuclear program, and to attest to the accuracy of its contents.

Prosecutors said they need much more than that from Mr. Risen, and they filed a Motion for Reconsideration on August 24.

Then on September 2 they filed a Supplement arguing that further developments “have strengthened the government’s argument that it has a compelling interest in Mr. Risen’s eyewitness testimony because it is necessary or critical to the case, and because there are no alternative means from which the government can obtain the same evidence.”

First, they said that in the absence of Mr. Risen’s definitive testimony the defense planned to allege that multiple other individuals were or might have been the source of the leak. “As a result, the government will be forced to prove a negative, over and over again, that each of these individuals was not the leaker.”

In particular, prosecutors said, “the defendant is using the Court’s decision to shield Mr. Risen from testifying as a sword to falsely attack the character and reputation of congressional staffers, most prominently Ms. Vicki Divoll,” a former Senate Intelligence Committee staffer.

In an August 2 motion (pdf), the Sterling defense had alleged that Ms. Divoll’s Senate employment had been terminated because she breached Committee confidentiality rules.  “This is a false charge — and the defendant knows that it is false,” prosecutors said.  They cited a statement from an Intelligence Committee legal representative who indicated that “Ms. Divoll’s personnel file did not reflect a charge of disclosing classified information to anyone.”

Prosecutors also said that another argument by the Sterling defense about Mr. Risen’s writing style — a claim that no inferences about his sources can be drawn even when particular statements are attributed to named individuals — supports their request for a subpoena.

Specifically, the defense has provided notice (pdf) that University of Maryland Professor Mark Feldstein may be called to testify that Risen’s book “is written in the third-person omniscient, a narrative style in which the reader is presented the story by a narrator with an overarching perspective…. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular ‘characters’, whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed.”  This style is exemplified by books authored by Bob Woodward, the defense notice said.

This kind of argument “further underscores why the government has a compelling interest in requiring Mr. Risen to testify,” prosecutors wrote.

In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.”  As a result, prosecutors said, Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”

In other developments in the case, Judge Leonie Brinkema issued an August 30 order (pdf) with several rulings favorable to the prosecution.  She denied a defense motion for discovery of classified intelligence estimates on Iran’s nuclear program.  She rejected defense arguments that the Classified Information Procedures Act does not permit the government to introduce substitutions for classified evidence.  And she granted a prosecution request that certain intelligence assets be permitted to testify behind a screen so that their identities are not made public.

The previously undisclosed subject matter of a leak of classified information by former FBI linguist Shamai Leibowitz concerned transcripts of FBI wiretaps of Israeli efforts to monitor and influence U.S. policy, Scott Shane revealed in the New York Times today.  See “Leak Offers Look at Efforts by U.S. to Spy on Israel.”  Mr. Leibowitz pleaded guilty to the unauthorized disclosures, which were provided to blogger Richard Silverstein.  Leibowitz was sentenced to jail in May 2010.