Posts from June, 2012

Kiriakou Calls Leak Prosecution Selective, Vindictive

Former CIA officer John Kiriakou, who is charged with unauthorized disclosure of a covert officer’s identity and other classified information, says that the case against him is driven by government animosity, and that he is a target of selective prosecution.

“When White House aides leaked stories about the heroes who killed Osama Bin Laden, they were not prosecuted.  When the Washington Post was granted access to the covert director of the CTC for a profile of those directing America’s ‘war on terror,’ no one was prosecuted,” his attorneys wrote in a newly disclosed motion for dismissal.

“But when John Kiriakou gave an interview where he admitted the United States used waterboarding and when he further opined that waterboarding was ineffective, the government went after him,” the motion stated.

“The United States has improperly selected him for prosecution based on his exercise of his constitutional rights and on the animus the United States holds toward him” while “the government has tolerated other disclosures because they resulted in press favorable to the government.”

A copy of the June 12 defense motion was cleared for public release yesterday.

In a separate motion for dismissal, Mr. Kiriakou’s attorneys challenged the constitutionality of the statutes under which he is being prosecuted, including the Intelligence Identities Protection Act and section 793(d) of the Espionage Act, which they argued are “unconstitutionally vague and overbroad.”

Furthermore, because overclassification is rampant, they said, the classification status of any particular information is not a reliable index of its sensitivity.

“The government’s acknowledged practice of over-classification means that not all classified information actually has the potential to damage national security if released….  The fact that information is classified does not actually clarify whether its disclosure… could cause any injury to the United States.”

A government response to the defense motions is due by July 2.

Rio + 20, and More from CRS

New and updated reports from the Congressional Research Service obtained by Secrecy News include the following.

Rio+20: The United Nations Conference on Sustainable Development, June 2012, June 18, 2012

The Consumer Financial Protection Bureau (CFPB): A Legal Analysis, June 7, 2012 (published June 20)

Job Creation in the Manufacturing Revival, June 20, 2012

Double-Dip Recession: Previous Experience and Current Prospect, June 19, 2012

Morocco: Current Issues, June 20, 2012

State Secrets Protection Act Introduced in House

A bill “to provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege” was introduced in the House of Representatives this week by Rep. Jerrold Nadler and several Democratic colleagues.

Essentially, the bill (HR 5956) would require courts to render an independent assessment of the validity of a government assertion of the state secrets privilege, rather than simply deferring to the claim.  When the privilege is properly asserted, courts would be required to consider the feasibility of introducing non-privileged substitutes for privileged evidence.

Such measures would make it more likely that cases could proceed to adjudication even when discrete pieces of evidence are found to be privileged.

“The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Rep. Nadler in a news release.  “This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases.  The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy.”

 

DNI Directive Seeks to Tighten Protection of Intelligence

Director of National Intelligence James R. Clapper issued a directive earlier this month to improve the protection of intelligence information and to help prevent unauthorized disclosures.

The newly revised Intelligence Community Directive 700 requires a new degree of collaboration between counterintelligence and security activities.  While counterintelligence (CI) was scarcely mentioned in the previous version of the policy on protecting intelligence in 2007, it is now being elevated to a central role and integrated with security.

“Together, CI and security provide greater protection for national intelligence than either function operating alone,” the new directive states.

In order to combat the insider threat of unauthorized disclosures, the directive prescribes that “all personnel with access to national intelligence… shall be continually evaluated and monitored….”

But since there are more than a million government employees and contractors holding Top Secret clearances who are potentially eligible for access to intelligence information, it seems unlikely that any significant fraction of them can literally be “continually monitored.”  Still, that is now formally the objective.

A copy of the June 7, 2012 directive on “Protection of National Intelligence” was released by the Office of the Director of National Intelligence under the Freedom of Information Act.

The new directive has been under development for at least several months.  It was not specifically devised as a response to the latest controversy over leaks of classified information.

It serves as a reminder that the implementation of revised policies to address unauthorized disclosures of classified information (including congressional action just last year to establish an “insider threat detection program”) is ongoing, possibly obviating the need for new legislation.

History of Executive Privilege, and More from CRS

A 2008 report by the Congressional Research Service discussed the history of claims of executive privilege, including various unresolved questions surrounding its use.  The Obama Administration asserted executive privilege today in connection with records sought by a House Committee.  See Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, updated August 21, 2008.

Newly updated reports from the Congressional Research Service that Congress has not made publicly available include the following.

U.S.-China Military Contacts: Issues for Congress, June 19, 2012

Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy, June 18, 2012

Madagascar’s Political Crisis, June 18, 2012

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, June 15, 2012

U.S. Trade Deficit and the Impact of Changing Oil Prices, June 18, 2012

Unauthorized Alien Students: Issues and “DREAM Act” Legislation, June 19, 2012

Federal Taxation of Aliens Working in the United States, May 18, 2012

What’s Next in Afghanistan, and More from CRS

An updated report from the Congressional Research Service proposes a series of questions to help inform and guide congressional debate on the future of the U.S. war in Afghanistan and its aftermath.  See In Brief: Next Steps in the War in Afghanistan? Issues for Congress, June 15, 2012.

Other new and (mostly) updated CRS reports that Congress has not made publicly accessible include the following.

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, June 13, 2012

The Navy Biofuel Initiative Under the Defense Production Act, June 13, 2012

Navy Ship Names: Background For Congress, June 15, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, June 14, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, June 14, 2012

Coast Guard Cutter Procurement: Background and Issues for Congress, June 13, 2012

Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act, June 14, 2012

Employee Stock Options: Tax Treatment and Tax Issues, June 15, 2012

Proliferation Security Initiative (PSI), June 15, 2012

U.S. Response to the Global Threat of Malaria: Basic Facts, June 15, 2012

U.S. Response to the Global Threat of Tuberculosis: Basic Facts, June 15, 2012

U.S. Response to the Global Threat of HIV/AIDS: Basic Facts, June 15, 2012

U.S.-Taiwan Relationship: Overview of Policy Issues, June 15, 2012

Drought in the United States: Causes and Issues for Congress, June 12, 2012

Pentagon Lists 110 Potential Drone Bases in U.S.

The Department of Defense has identified 110 sites in the United States that could serve as bases for military unmanned aerial systems (UAS), or drones.  A new report to Congress lists each of the 110 sites “and the UAS likely to fly at that location.”  See “Report to Congress on Future Unmanned Aircraft Systems Training, Operations, and Sustainability,” Department of Defense, April 2012 (pp. 9-12).

The newly disclosed DoD report was first reported by InsideDefense.com.

The actual or potential drone bases are located in 39 of the 50 states, from Fort McClellan in Alabama to Camp Guernsey in Wyoming, as well as Guam and Puerto Rico.

Currently, the DoD and the military have “88 active certificates of authorization (COAs) at various locations around the country” that permit them to fly UASs outside of restricted military zones, the report to Congress said.  COAs are issued by the Federal Aviation Administration.

But “The rapid increase in fielded UAS has created a strong demand for access within the NAS [National Airspace System] and international airspace. The demand for airspace to test new systems and train UAS operators has quickly exceeded the current airspace available for these activities,” the report said.

The Senate Armed Services Committee, evidently receptive to this demand, said in its report on the FY2013 defense authorization act that integration of drones into domestic airspace should be accelerated.  See “Senate: Drones Need to Operate ‘Freely and Routinely’ in U.S.,” Secrecy News, June 8, 2012.

The website Public Intelligence previously identified 64 U.S. drone site locations.  See also “Revealed: 64 Drone Bases on American Soil” by Lorenzo Franceschi-Bicchierai, Wired Danger Room, June 13:

“UAS will not achieve their full potential military utility unless they can go where manned aircraft go with the same freedom of navigation, responsiveness, and flexibility,” the new DoD report to Congress said.

A bill “to protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles” (HR 5925) was introduced in the House of Representatives on June 7 by Rep. Austin Scott.  A companion bill (S.3287) has been introduced in the Senate by Sen. Rand Paul.

Some More CRS Reports

New and updated reports from the Congressional Research Service which have not been made publicly accessible include the following.

Alternative Fuel and Advanced Vehicle Technology Incentives: A Summary of Federal Programs, June 12, 2012

SBA New Markets Venture Capital Program, June 12, 2012

Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA), June 13, 2012

The U.S. Postal Service: Common Questions About Post Office Closures, June 13, 2012

Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress, June 13, 2012

Iraq: Politics, Governance, and Human Rights, June 13, 2012

The Jackson-Vanik Amendment and Candidate Countries for WTO Accession: Issues for Congress, June 13, 2012

Russia’s Accession to the WTO and Its Implications for the United States, June 13, 2012

Permanent Normal Trade Relations (PNTR) Status for Russia and U.S.-Russian Economic Ties, June 13, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, June 13, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, June 12, 2012

Not All Leaks of Classified Information Violate the Law

“The unauthorized release of classified information is a crime–it is a crime–because it threatens our national security and puts the lives of those who are sworn to defend our Nation in jeopardy,” said Sen. John Cornyn (R-TX) said on the Senate floor yesterday. “Everyone agrees [this] is criminal conduct.”

A resolution introduced by Sen. John McCain and twenty Republican colleagues calling for appointment of a special counsel to investigate recent leaks stated flatly that “the unauthorized disclosure of classified information is a felony under Federal law.”

But these statements are imprecise and misleading.  While some unauthorized disclosures of classified information are indeed contrary to law, it is not the case that all such disclosures violate the law.  In fact, there is no law that categorically prohibits the release of classified information.

“It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved,” wrote Attorney General John Ashcroft in an October 2002 report to Congress.

Significantly, AG Ashcroft added that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”

Likewise, according to the Congressional Research Service, “there is no one statute that criminalizes the unauthorized disclosure of any classified information…. It is possible that some of the government information… does not fall under the express protection of any statute, despite its classified status.”

Some types of classified information are specifically protected by law, including that pertaining to communications intelligence, identities of covert agents, and nuclear weapons design information.  But the Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information.

Even when “national defense” information that is clearly covered by the Act is disclosed to an unauthorized person, it does not necessarily follow that a crime has been committed.

Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

If White House officials disclosed classified information to reporters without authorization, it is doubtful that they intended to harm the United States or to aid a foreign government by doing so.

For these reasons, it is not true that “everyone agrees [this] is criminal conduct.”

The Latest Crop of CRS Reports

New and updated reports from the Congressional Research Service include the following.

Mexican Migration to the United States: Policy and Trends, June 7, 2012

Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence, June 8, 2012

International Monetary Fund: Background and Issues for Congress, June 12, 2012

The Multilateral Debt Relief Initiative, June 11, 2012

The American Opportunity Tax Credit: Overview, Analysis, and Policy Options, June 11, 2012

Sexual Orientation and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), June 8, 2012

Qatar: Background and U.S. Relations, June 6, 2012

Iran’s Nuclear Program: Tehran’s Compliance with International Obligations, June 8, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, June 12, 2012