SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 60
June 30, 2004

SUPREME COURT TO CONSIDER IF DEFECTORS MAY SUE CIA

The U.S. Supreme Court this week granted a petition from the Central Intelligence Agency asking for review of a lower court ruling that would allow a couple who defected to the United States to sue the Agency.

The plaintiffs, identified only as John and Jane Doe, are "former Cold War defectors who were coerced by the CIA into being intelligence sources," according to their court filings.

"John Doe was a high-ranking diplomat for a country considered an enemy of the United States during the Cold War. While John Doe and his wife were posted on diplomatic mission in a third country, they approached a person attached to the U.S. embassy and requested assistance in defecting to the United States. The Does had no interest in conducting espionage," according to their account.

"CIA agents intervened, taking the Does to a CIA safe house where they were held for nearly 12 hours, time sufficient to create extreme danger of exposure if they returned to their embassy. The CIA officers employed intimidation and coercion to cause the Does to remain at their diplomatic post and conduct espionage for the United States for a period of time."

The Does seek enforcement of the financial agreement they say they reached with the CIA.

The CIA's position is that any such lawsuit is barred by an 1875 Supreme Court ruling, Totten v. United States, under which the heirs of a civil war spy, William A. Lloyd, were precluded from suing the government for compensation.

All of the case files, which address foundational issues in national security and intelligence law, had to be approved for public disclosure by CIA reviewers concerned about the potential for compromise of classified information.

"In this case, any Agency response to the factual assertions made in any of plaintiffs' pleadings, whether to either confirm or deny the allegations contained therein, would be classified information and could not be filed in open court," declared former CIA officer William H. McNair in a 2000 court filing.

A copy of the government's petition to the Supreme Court, the Does' response, and the government's reply, comprising hundreds of often interesting pages, may be found here ("Tenet v. Doe at the Supreme Court"):

UAV FLIGHT REGULATIONS

In a new sign of the acceptance and normalization of unmanned aerial vehicles (UAVs), the U.S. Army last month issued flight regulations governing their use.

"This regulation covers unmanned aerial vehicle operations, air vehicle operator / crewmember training and currency requirements, and flight rules."

Army Regulation 95-23 on "Unmanned Aerial Vehicle Flight Regulations" dated 14 May 2004 is available here:

Meanwhile, the Department of Homeland Security last week announced "the first sustained civilian use of unmanned aerial vehicles (UAVs) to curb illegal activities along Arizona's southern border."

DOD DICTIONARY OF MILITARY TERMS

The Pentagon has reissued its Dictionary of Military and Associated Terms, featuring over 700 pages of definitions updated through March 2004.

The Dictionary includes a limited amount of intelligence terminology, but no military slang. "Snafu" or "fubar" or similar indispensable words are not to be found.

See Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms (1.8 MB PDF file):

BILL WOULD PROHIBIT "EXTRAORDINARY RENDITION" BY CIA

One of the lacunae in the continuing debate over the proper boundaries of prisoner detention and interrogation is the role of intelligence agencies. Administration officials have mostly declined to address questions about whether such agencies are subject to the same standards and requirements as regular military interrogators.

In the face of official refusal to engage in debate on the subject, Rep. Edward Markey (D-MA) last week introduced a bill to prohibit the practice of "extraordinary rendition" by U.S. intelligence.

"Under the name 'extraordinary rendition', the CIA reportedly sends terrorism suspects, sometimes on the flimsiest of evidence, to foreign countries that are known to employ torture in prisoner interrogation," Rep. Markey said.

"This practice is against all U.S. and international law and is a moral outrage, and it must be stopped."

See his June 23 statement, with a link to the text of the bill, here:

Human Rights First has prepared a new report citing known or suspected detention facilities around the world operated by the United States. See "Ending Secret Detentions," June 2004:

COURT BLASTS "FRIVOLOUS" WITHHOLDING OF INFO BY FBI, TSA

In a ruling that exemplifies how the Freedom of Information Act is supposed to work, a federal judge found that government agencies had made "frivolous claims" that their information was exempt from disclosure.

Judge Charles R. Breyer of the northern district of California ruled two weeks ago that the Federal Bureau of Investigation and the Transportation Security Administration had improperly withheld information that had been requested under the FOIA regarding "no fly" lists that restrict airline travel by certain persons.

The lawsuit was brought by two such persons and the ACLU of Northern California.

In a finding of potentially broad policy significance, the judge ruled that the agencies had repeatedly and improperly categorized "innocuous" information as "sensitive security information" (SSI) that is statutorily exempt from FOIA.

Some of the information that the agencies tried to withhold "is by no means sensitive security information; rather, it is common sense and widely known. Defendants have offered no justification for withholding such innocuous information."

See Judge Breyer's June 15 ruling here:

Although this case provides tangible evidence that government agencies are carelessly abusing their authority to withhold information as "sensitive security information," Congress is on the verge of expanding that authority to restrict even more information as SSI without providing any new checks or oversight.

Thus, a provision in a pending Senate transportation bill would expand the application of SSI controls to the entire transportation infrastructure and would override any state or local requirements to disclose information. The provision was first noted by the Society of Environmental Journalists (www.sej.org) in their Watchdog TipSheet.

See "Highway bill's secrecy rules spark public-safety debate" by James Bruggers, Louisville Courier-Journal, June 27:

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

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