SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 64
July 28, 2003

SCHUMER SEEKS LEAK INVESTIGATION

Following up on news reports that Bush Administration officials "leaked" the name of a CIA officer who is the wife of administration critic Ambassador Joseph Wilson, Senator Charles E. Schumer (D-NY) has asked the FBI to initiate a criminal investigation into the matter.

"This disclosure was part of an apparent attempt to discredit Ambassador Wilson's findings about potential uranium exports from Niger to Iraq and intimidate other officials from speaking their minds," Sen. Schumer wrote in a July 24 letter to FBI Director Robert Mueller.

"As you are aware, the unauthorized disclosure of information relating to the identity of an American intelligence official is a crime punishable by fines and up to 10 years in prison under the Intelligence Identities and Protection Act," he noted.

(That Act, at 50 U.S.C. 421-26, prohibits disclosure of identities of intelligence personnel as part of a "pattern of activities intended to identify and expose covert agents." It is not clear that a single disclosure would legally constitute such a "pattern.")[Note Added 8/4/03: The "pattern of activities" criterion applies only to nongovernmental persons who do not have authorized access to this information. Even a single disclosure by a person who does have authorized access would be a violation. See 50 U.S.C. 421(a)]

Sen. Schumer recalled that after a reported leak of classified congressional testimony in June 2002, "The FBI questioned nearly 100 people, including all 37 members of the House and Senate intelligence committees and some 60 staff members."

"This current scandal is just as serious as the one from June 2002.... The FBI needs to find out who made the name of this agent public and prosecute them to the fullest extent of the law. There can be zero tolerance for this kind of action," Schumer said. See his July 24 letter here:

SENATE SHIELDS HOMELAND SECURITY FROM FACA

The Department of Homeland Security (DHS), still in its bureaucratic infancy, is already dogged by allegations of corruption. But the U.S. Senate is blocking attempts to address those allegations.

Noting that the Homeland Security Advisory Council includes representatives of corporations seeking to do business with the new Department, Sen. Robert Byrd (D-WV) proposed that this and other DHS advisory groups should be subject to the open meeting requirements of the Federal Advisory Committee Act (FACA).

"Corporate leaders and campaign contributors have been awarded coveted seats on the advisory committees that make policy recommendations to Secretary Ridge and to others in the Department," Sen. Byrd said, echoing criticism offered lately by the Project on Government Oversight (POGO) and others.

"By requiring that the Department of Homeland Security comply with the Federal Advisory Committee Act, my amendment will ensure that Congress and the American people know how these advisory committees are being used," Sen. Byrd said.

But by a party line vote of 50-46 on July 24, the Senate determined to keep the homeland security advisory process beyond the scrutiny of the general public and rejected the Byrd proposal. See:

BASIC RESEARCH WILL REMAIN UNRESTRICTED, DOE SAYS

The Department of Energy (DOE) has reaffirmed the longstanding policy that basic scientific research will remain unrestricted "to the maximum extent possible," and that no new controls other than national security classification will be employed to limit scientific publication and collaboration.

The DOE statement emerged in response to concerns from scientists and others that new information controls, under the loose rubric "sensitive but unclassified," were threatening the vitality of the U.S. national laboratories.

See this Department-wide memo from Energy Secretary Spencer Abraham, dated May 12, 2003:

Secretary Abraham cited a related letter from National Security Adviser Condoleeza Rice, dated November 1, 2001, which is posted here:

FOIA LITIGATION NEWS

The latest round of an FAS Freedom of Information Act (FOIA) lawsuit against the Central Intelligence Agency seeking disclosure of the 2002 intelligence budget total probes the limits of judicial deference to agency heads such as the Director of Central Intelligence (DCI).

Is the Court effectively obliged to accept whatever the DCI says under oath? (Yes, says the government.) Or, as we suggest, can the DCI's presumed authority be squandered by repeated factual errors, omissions and misrepresentations? See our July 25 reply in support of our motion for summary judgment here:

Coincidentally, the judge in the case, the Honorable Ricardo M. Urbina, is the subject of an interesting and revealing profile by Ken Adelman in the August 2003 issue of Washingtonian Magazine.

The latest, mostly adverse judicial ruling in a national security FOIA lawsuit came in the case of FBI whistleblower Sibel Edmonds (who was recently profiled on CBS Sixty Minutes). See this July 23 decision:

On a more favorable note, the FOIA lawsuit brought by A. Jay Cristol for records concerning the 1967 Israeli attack on the U.S.S. Liberty (Secrecy News, 07/09/03) is drawing to a formal conclusion because "the National Security Agency has fully satisfied Plaintiff's FOIA request," according to a draft settlement agreement. "There no longer remains any controversy to be adjudicated in this case."

I can claim perhaps an iota of credit for this happy outcome because I suggested to Cristol early on that he acquire a copy of the handbook "Litigation Under the Federal Open Government Laws 2002," edited by Harry A. Hammitt, David L. Sobel and Mark S. Zaid.

"It contains a treasure chest of useful material," wrote back Judge Cristol, a Miami bankruptcy court judge, in thanks.

Copies of "Litigation Under the Federal Open Government Laws" may be purchased through the websites of the Electronic Privacy Information Center (www.epic.org), the James Madison Project (www.jamesmadisonproject.org), or through Harry Hammitt's Access Reports at:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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