Posts from August, 2012

Court Dismisses Case Based on State Secrets Privilege

A federal court yesterday dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California.  The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case.

The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.”

The government said various aspects of the subject were too sensitive to be addressed in open court.  Last year, Attorney General Eric Holder filed a declaration asserting that several categories of information pertaining to the case were protected by the state secrets privilege and their disclosure “could reasonably be expected to cause significant harm to the national security.”

Yesterday, Judge Cormac J. Carney of the Central District of California agreed and he issued an order dismissing most of the plaintiffs’ claims.

“Further litigation,” he wrote, “would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.”

In his order, Judge Carney also reflected more broadly on the function of the state secrets privilege and its implications for individual liberties.

“The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest,” he wrote.

It follows that “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

“The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies.”

“Plaintiffs raise the specter of Korematsu v. United States… and protest that dismissing their claims based upon the state secrets privilege would permit a ‘remarkable assertion of power’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘counterterrorism’ and ‘state secrets.’ But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here.”

“The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds,” Judge Carney wrote.

The ACLU of Southern California said it would appeal the decision, the Los Angeles Times reported today.

In a September 2009 policy statement on state secrets, the Attorney General pledged to refer credible claims of wrongdoing that had been dismissed on state secrets grounds to an agency Inspector General for review.  It is unknown whether such a referral has occurred in this case, or indeed if it has ever occurred.  The Department of Justice recently refused to answer a congressional inquiry on the subject.

Gun Control Legislation, and More from CRS

Recent products of the Congressional Research Service that CRS has not been authorized to release to the public include the following.

Gun Control Legislation, August 3, 2012

El Salvador: Political, Economic, and Social Conditions and U.S. Relations, August 13, 2012

Honduran-U.S. Relations, July 25, 2012

Cuba: U.S. Restrictions on Travel and Remittances, July 24, 2012

Cyprus: Reunification Proving Elusive, August 13, 2012

Kazakhstan: Recent Developments and U.S. Interests, August 10, 2012

Wiretapping and Legal Ethics, and More from CRS

New reports from the Congressional Research Service that have not been released to the public include the following.

Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation, August 9, 2012

The Speech or Debate Clause: Constitutional Background and Recent Developments, August 8, 2012

FY2013 National Defense Authorization Act: Selected Military Personnel Policy Issues, August 9, 2012

Major Fiscal Issues Before Congress in FY2013, August 10, 2012

FY2013 Appropriations: District of Columbia, August 10, 2012

Newly updated editions of earlier CRS reports that Congress has also not made readily available to the public include these:

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, August 10, 2012

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, August 10, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, August 10, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, August 10, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, August 10, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, August 10, 2012

Budget “Sequestration” and Selected Program Exemptions and Special Rules, August 9, 2012

Secrecy News Odds and Ends

A coalition of public interest groups asked the Senate and House Intelligence Committees to preserve an existing requirement for the Intelligence Community to produce an annual report on the number of security clearances.  “We believe the annual report on security clearances provides exceptional value to the public and should continue to be published,” the groups wrote.  The Senate Intelligence Committee markup of the 2013 intelligence authorization bill would repeal the reporting requirement.

Last week the Senate confirmed four of the five nominees to the long-dormant Privacy and Civil Liberties Oversight Board.  The nominations of James Dempsey, Elisabeth Collins Cook, Rachel Brand and Patricia Wald were unanimously confirmed.  For unexplained reasons, the Senate did not act upon the nomination of David Medine to serve as Board chairman.

The Naval Criminal Investigative Service contacted the Wired Danger Room blog to inquire where its reporter obtained a certain unclassified document five years ago and to ask that the document, which was marked “for official use only,” be taken offline.  “Danger Room, through its attorney, declined to provide the information, or to answer any questions related to the reporting of the story.  The document has not been removed.”  A government information security official not involved in the matter said it was possible there was more to the story than appeared on the surface.  “If the [NCIS] investigation is about the FOUO document, then it’s ridiculous. If it’s about something else, we might not ever know.”

The House Intelligence Committee filed its report on the extension of the FISA Amendments Act.  Like its counterparts on the Judiciary Committee, the Intelligence Committee rejected amendments that would shorten the extension of the law and increase public oversight of its implementation.

With little fanfare or self-congratulation, the National Reconnaissance Office and the National Security Agency have been steadily declassifying and releasing historical intelligence records.  “This tremendous amount of information released in the past year is credit to an impressive declassification program within the intelligence services,” wrote historian Dwayne Day in an assessment of the latest NRO releases. “The US military and intelligence space programs during the first couple of decades of the space age can now be described in incredible detail and understood far better than before.”

Unemployment Benefits for Millionaires, and More from CRS

Thousands of Americans who have a gross annual income of more than a million dollars have also been collecting unemployment benefits, according to IRS data compiled in a new report from the Congressional Research Service.

That description fits only a tiny fraction of a percent of those receiving unemployment benefits, and is obviously not typical of recipients of unemployment insurance.  But neither does it violate any law. The issue has prompted pending legislation to restrict benefits based on income. See Receipt of Unemployment Insurance by Higher-Income Unemployed Workers (“Millionaires”), August 2, 2012.

A persistent controversy in Japan concerning a U.S. Marine base in Okinawa is reviewed in another new report from the Congressional Research Service.  See The U.S. Military Presence in Okinawa and the Futenma Base Controversy, August 3, 2012.

Other new and updated CRS reports that CRS is not authorized to release to the public include the following.

Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, August 3, 2012

U.S.-China Relations: Policy Issues, August 2, 2012

Uzbekistan: Recent Developments and U.S. Interests, August 3, 2012

Global Security Contingency Fund (GSCF): Summary and Issue Overview, August 1, 2012

Science, Technology, Engineering, and Mathematics (STEM) Education: A Primer, August 1, 2012

Continuing Resolutions: Overview of Components and Recent Practices
, August 6, 2012

Department of Homeland Security: FY2013 Appropriations, August 3, 2012

 

Congress Resists Efforts to Reduce Secrecy

Ordinarily, critics of government secrecy focus their ire — and their strategy — on executive branch agencies that refuse to release certain national security-related information to the public.  But to an extent that is not widely recognized or understood, it is Congress that has erected barriers to greater openness and has blocked efforts to improve transparency.

Increased FISA Disclosure Blocked in House

The phenomenon of congressionally-sponsored secrecy was starkly illustrated in a new House Judiciary Committee report on the FISA Amendments Act, which governs intelligence surveillance for purposes of counterterrorism.

Despite well-founded concerns over the implementation of that law — even the DNI acknowledges it has been employed in an unconstitutional fashion “on at least one occasion” — the Committee voted to renew it until 2017 while rejecting amendments that would have provided increased public disclosure and accountability regarding the law’s use.

It is a simple fact that under the FISA Amendments Act “the government can and does intercept the communications of U.S. citizens, even in the absence of any particularized warrant or showing of probable cause,” stated the dissenting members of the Committee in the new report.

“The public has a right to know, at least in general terms, how often [this authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens,” the minority members wrote.  But an amendment to require unclassified public reporting on these topics, offered by Rep. Bobby Scott (D-VA), was defeated 10-19.

Another amendment introduced by Rep. Jerrold Nadler (D-NY) would have required publication of unclassified summaries of decisions of the Foreign Intelligence Surveillance Court that have interpreted the law in significant ways.  “This amendment aimed only to make the legal reasoning of the FISA Court available to the public.  It also sought to ensure that the United States should not have a secret body of law.”  It was rejected by a vote of 13-17.

A third amendment would have required the Inspectors General of the intelligence community and the Justice Department to produce a public estimate of how many Americans have already had their communications collected under this law.  The amendment, by Rep. Sheila Jackson Lee (D-TX), failed by a vote of 11-20.

All of these amendments “would have left the underlying authorities of the FAA [FISA Amendments Act] intact, but would have required the government to make basic, non-sensitive information available to the public,” the dissenting members wrote in the new report.  “The FAA is an important tool for intelligence gathering, but classified reports and secret court opinions are no substitute for public oversight.”

Remarkably, that is a minority view today.  The majority in the House Judiciary Committee, and most likely in Congress as a whole, favors classified reports and secret court opinions, and it has little use for public oversight or public consent.

Congress Has Outlawed Bulk Declassification

The problem of congressionally-mandated secrecy is also manifest in the difficulties facing declassification of valuable historical records.  The National Declassification Center was tasked by President Obama in 2009 to eliminate the backlog of nearly 400 million pages of 25 year old records awaiting declassification by the end of 2013.

By all indications, that goal will not be met and the President’s instruction will not be fulfilled.  As a result, the Center has been criticized, by myself among others, as inadequate to its task.  See, most recently, “Obama administration struggles to live up to its transparency promise, Post analysis shows” by James Ball, Washington Post, August 3.

But on closer inspection, much of the criticism directed toward the National Declassification Center is unfair.  It misdiagnoses the problem.  The Center and its director, Sheryl Shenberger, have been working energetically and creatively to develop improved declassification procedures and greater productivity.  Records that were mistakenly believed to have been made public in the Clinton Administration are finally now becoming available in actuality.  The pace of declassification is increasing.  But not fast enough.

The primary reason that the Center will not meet its presidentially-assigned goal is not some latent preference for non-disclosure among the Center staff.  Rather, the main problem is an obstacle created by Congress in the form of a 2000 statute known as the Kyl-Lott Amendment.  That Amendment makes it impossible to perform bulk declassification of government records, no matter what their age or subject matter, unless they have been certified as “highly unlikely” to contain nuclear weapons-related information.  In the absence of such certification, declassifiers at the Center and elsewhere have no choice but to conduct what amounts to page-by-page review.

Because this Kyl-Lott review requirement has been written into law by Congress, it trumps any “order” or goal that the President of the United States might set.  No alternate set of procedures to protect classified nuclear weapons information would suffice to satisfy the law.

In effect, Congress has vetoed the possibility of bulk declassification of government records.  Unless and until the Kyl-Lott Amendment is repealed, it is hard to see how the laborious, time-consuming declassification process can ever be transformed into something more sensible and efficient.

SSCI Giveth and Taketh Away?

One of the handful of genuine breakthroughs in national security transparency lately has been the public reporting on security clearances, and particularly the disclosure of the unexpectedly high number of cleared persons eligible for access to classified information.

The release of this information was not voluntary, but was the result of a statutory requirement in the FY 2010 intelligence authorization act.  Thanks are due to the House and Senate Select Committees on Intelligence for legislating this precedent-setting disclosure.

Now, however, the Senate Select Committee on Intelligence (SSCI) has moved to repeal this two-year-old reporting requirement (in section 308 of S.3454), as requested by the intelligence community (h/t Emptywheel).  Although it is consistent with recent Committee steps to curtail press and public access even to unclassified intelligence information, the logic of this move is hard to fathom.

If the Senate Committee’s repeal provision is adopted by Congress, this most basic measure of the size of the national security bureaucracy would cease to be updated and made publicly available.  The secrecy and obscurity of the recent past would be restored.

Exercising the Power of the Purse

Every now and then, Congress does behave as the textbooks would lead one to expect.  It pushes back against executive branch secrecy in order to protect its own institutional prerogatives, if not specifically the public interest in transparent and accountable government.

Last week, the Senate Defense Appropriations Subcommittee imposed a $13 million cut on secret Pentagon missile defense programs because it said that DoD did not provide the information that Senators had expected to receive:

“The Committee notes the poor briefing materials in support of classified programs despite requests made by the Committee for the inclusion of specific information. Therefore, the Committee does not believe that the budget request for these programs was fully and appropriately justified and recommends an undistributed reduction of $13,600,000. The Director of the Missile Defense Agency is directed to submit a list of classified projects against which this reduction is levied not later than 90 days after enactment of this act.”

*    *    *

Overall, the strange congressional propensity for executive branch secrecy presents a conundrum and a challenge to advocates of greater openness and accountability.  It is probably unrealistic to expect executive agency officials to take significant steps to provide greater public disclosure of national security information if a majority in Congress is on record opposing such steps.

Justice Dept Silent on IG Role in State Secrets Cases

The Department of Justice told Congress recently that it would not disclose the number of state secrets cases involving alleged government misconduct, if any, that have been referred to an Inspector General for investigation.

Under a revised state secrets policy that was announced by Attorney General Holder in 2009, the Department committed to referring credible claims of government wrongdoing that could not be adjudicated in court because the state secrets privilege had been invoked to the Inspector General of the relevant agency for further investigation.

So have any such state secrets cases in fact been referred an Inspector General?  That question was posed for the record by Sen. Sheldon Whitehouse following a November 2011 hearing of the Senate Judiciary Committee.

In newly published responses to this and a wide range of other questions that were transmitted to Congress in June, the Justice Department said it would not answer directly.

“The Department’s policy is not to disclose the existence of pending IG investigations.  Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department policy on state secrets privilege.”

“However, to the extent IG investigations are undertaken, the Government has typically released public versions of final IG reports,” the DoJ reply stated.

No such public versions of final IG reports have been released in the Obama Administration, as far as could be determined.  In 2008, a redacted version of a DHS Inspector General report concerning the Maher Arar state secrets case was released.

Pentagon Use of Polygraph Tests Rises Sharply

The number of polygraph examinations performed by the Department of Defense more than doubled over the past decade to over 43,000 tests in a one-year period, according to a study performed last year for the Under Secretary of Defense (Intelligence).

The large majority of the tests were for pre-employment or periodic reinvestigation employee screening purposes.  The remainder were conducted in the course of criminal or other investigations.

Most employee screening polygraph exams are uneventful, yielding “no significant response” to predetermined questions.  But a fraction of them produce a “significant response” which prompts the examiner to ask the subject for an explanation.  Placed in such a circumstance, many people will volunteer derogatory information about themselves.

In 2010-11, the DoD tests resulted in “3,903 admissions of misconduct, ranging from security violations and failure to disclose foreign contacts to counterintelligence and criminal violations,” the DoD study said.

“Most often the derogatory information, ranging from relatively minor security infractions to serious felony offenses, would not have been known were it not for the employment of the polygraph,” the study said.

In a small subset of cases, the polygraph test generates a “signficant response” but the subject is unable or unwilling to provide a satisfactory explanation.  In such cases, the individual may be tested repeatedly until the issue is resolved or, if already holding a clearance, may be placed in a conditional access status.

The DoD polygraph report provides hard-to-find numerical data about DoD polygraph testing practices, including the number of tests performed by DoD intelligence agencies, which has risen sharply from past levels.

Ten years ago, DoD reported to Congress that it had performed 11,566 polygraph examinations.  See the FY2002 report on the DoD polygraph program here.

That 2002 figure did not include exams conducted for the NSA or the NRO, so it cannot be directly compared to the latest of 43,434 polygraph exams in 2011, which did include numbers for both NSA (10,824) and NRO (8,404).  But subtracting those figures — which yields 24,206 tests — reveals that polygraph testing at DoD more than doubled over the past decade.

The DoD report on polygraph testing, which is marked For Official Use Only, was not authorized for public release.  A copy was obtained by Marisa Taylor of McClatchy News, who reported on it in her recent series on polygraph testing at the National Reconnaissance Office.

In its pending legislation (section 504), the Senate Intelligence Committee asked the Director of National Intelligence to consider expanded use of polygraph testing, and to report on “the practical feasibility of extending the use of the polygraph to additional Executive branch personnel.”

Among scientists, the polygraph is generally viewed with skepticism bordering on disdain.  Polygraph testing is “intrinsically susceptible to producing erroneous results,” according to a 2002 report from the National Academy of Sciences.

Leak Furor Persists in Senate

In a floor statement yesterday, Sen. John McCain reiterated his criticism of the Obama White House for allegedly leaking classified information that endangered national security, and he repeated his call for appointment of a special counsel to independently investigate the claims.

Sen. McCain cited a particular incident in 2009 described by David Sanger of the New York Times in which a senior National Security Council official arranged a special briefing for Sanger in the Presidential suite at a Pittsburgh hotel about a secret nuclear site in Iran.

“I wonder how many people have the key to the Presidential suite in that Pittsburgh, PA hotel? We might want to start there” in the search for the leakers, Sen. McCain said.

But it turns out that the resulting news story that appeared in the Times did not include classified information, and the discovery of the Iranian nuclear site was the subject of a public briefing the very next day.  See “John McCain swings at White House over 2009 Iran leak to David Sanger,” by Josh Gerstein, Politico, August 1.

An ongoing FBI investigation into leaks of classified information is “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings,” writes Scott Shane in the New York Times.

The congressional response to leaks of classified information is disingenuous or hypocritical, wrote Walter Pincus in “Lawmakers, media are duplicitous on leaks,” Washington Post, August 1.

“While the Pentagon insists it’s not doing anything that should alarm reporters, it has yet to offer a direct response as to exactly what it means when it says it’s going to monitor news reports for unauthorized disclosures.”  See “Defense vague on plan to plug press leaks” by Austin Wright and Leigh Munsil, Politico, August 1.

A correction:  Secrecy News stated yesterday that “the Senate Intelligence Committee bill would not apply to White House officials.”  That’s not quite right.  While most of the proposed anti-leak measures apply only to “elements of the intelligence community,” a few provisions such as Section 501 (requiring notification of authorized release of classified information) would apply to the entire executive branch, including the White House.

Medicaid Financing, Mountaintop Mining, and More from CRS

The Congressional Research Service has not been authorized to publicly release the following new and updated reports.

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, July 31, 2012

Organization of American States: Background and Issues for Congress, July 31, 2012

Changes in the Arctic: Background and Issues for Congress, August 1, 2012

Mountaintop Mining: Background on Current Controversies, August 1, 2012

Budgetary Treatment of Federal Credit (Direct Loans and Loan Guarantees): Concepts, History, and Issues for the 112th Congress, July 27, 2012

When Congressional Legislation Interferes with Existing Contracts: Legal Issues
, May 31, 2012 (published July 31)

Comparing Compensation for Federal and Private-Sector Workers: An Overview
, July 30, 2012

Medicaid Financing and Expenditures, July 30, 2012