SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 2
January 5, 2006

STATE SECRETS: REVISITING U.S. V. REYNOLDS

The 1953 Supreme Court ruling in United States v. Reynolds enshrined the "state secrets privilege" in U.S. jurisprudence, entitling the executive branch to withhold information about "military matters which, in the interest of national security, should not be divulged."

"Yet United States v. Reynolds... rests on a lie," according to a petition filed with the Supreme Court last month.

Fifty years ago, Air Force officials asserted under oath that documents at issue in the case contained state secrets pertaining to an Air Force plane that crashed, and refused to disclose them to the plaintiffs, widows of the fallen Air Force crew members.

But a half century later, when the documents were eventually released, no such secrets concerning the plane's mission or onboard equipment were to be found.

The petitioners, heirs to the original plaintiffs in Reynolds, are now asking the Supreme Court to review the case and to permit them to argue that they were defrauded by the government.

The petitioners were rebuffed by the Court in 2003 when they first sought reconsideration of the 1953 ruling, and their arguments have subsequently been rejected by the lower courts as well.

Still, the case raises interesting questions not only about the integrity of the original Reynolds decision, which is a cornerstone of national security law, but also about the judicial system's capacity to acknowledge and correct its errors.

A copy of the Petition for a Writ of Certiorari in the case now captioned Herring v. U.S., filed at the Supreme Court on December 21, 2005, is posted here (252 pages, 500 kb):

AN OPERATIONAL FILES EXEMPTION FOR DIA

Congress granted the Defense Intelligence Agency an exemption from the Freedom of Information Act for its "operational files," but only for the next two years.

DIA is the fifth intelligence agency -- after CIA, NSA, NRO and NGA -- to receive such an exemption, which permits it to exclude from searching or reviewing for release under FOIA files "that document the conduct of foreign intelligence or counterintelligence operations."

Opponents of the measure were concerned that the exemption could be used indiscriminately to withhold intelligence records that would otherwise be eligible for disclosure under FOIA.

So it was a partial victory for critics when Congress imposed an unprecedented "sunset"on the exemption, such that it will be terminated at the end of December 2007.

The final language of the provision, contained in the FY 2006 Defense Authorization Act, and the accompanying report language, may be found here:

A MILLION FOR THE PUBLIC INTEREST DECLASS BOARD

Congress finally appropriated $1 million for the Public Interest Declassification Board (PIDB), a White House advisory body that has been dormant for the past five years. The money was allocated without comment in the final version of the FY 2006 Defense Appropriations Act (H.R. 2863).

For PIDB membership and related information, see:

CRS ON NATIONAL SECURITY WHISTLEBLOWERS

The statutory framework that governs national security whistleblowers -- government employees who disclose malfeasance involving classified information or activities -- is examined in a new report from the Congressional Research Service.

"Whistleblowers have helped uncover agency wrongdoing, illegalities, waste, and corruption," the 43 page CRS report finds.

"The interest of Congress in maintaining an open channel with agency employees is demonstrated through such statutes as Lloyd-LaFollette, the appropriations riders on the nondisclosure policy, the Military Whistleblower Protection Act, and the Intelligence Community Whistleblower Act."

See "National Security Whistleblowers," December 30, 2005:

Political pressure is growing to provide improved protection for national security whistleblowers, who are often vulnerable to official retaliation.

"Under today's failed protection regimen, whistleblowers are forced to go to the national news media which often does a better job of protecting their identities than the Congress does," said Danielle Brian, Executive Director of the Project On Government Oversight (POGO), which circulated the CRS report today.

"National Security employees' highest duty is to the Constitution, and they should not have to sacrifice their careers or financial security in doing what is right," said Sibel Edmonds, president of the National Security Whistleblowers Coalition, which advocates stronger whistleblower protections.

"A former National Security Agency official wants to tell Congress about electronic intelligence programs that he asserts were carried out illegally by the NSA and the Defense Intelligence Agency," writes Bill Gertz in the Washington Times today.

See "NSA Whistleblower Asks to Testify," January 5:

PUBLIC ACCESS TO WORLD LAW BULLETIN URGED

Dozens of public interest organizations, librarians, attorneys and others have written a letter to Congress asking for "unrestricted public access" to the congressional publication World Law Bulletin.

"The World Law Bulletin, produced monthly by the Law Library of Congress, is a unique and uniquely valuable publication. It provides an unparalleled survey of legal developments abroad, along with focused analysis on topics of special interest. It is based entirely on open, published sources."

"We respectfully urge you to help the interested public to gain access to this exceptional congressional resource."

See the January 3, 2006 letter to the congressional Joint Committee on the Library here:

Recent back issues of World Law Bulletin, published without congressional authorization or approval, are available from the Federation of American Scientists here:

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

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