SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 10
January 25, 2006

WHITE HOUSE REBUFFED 2002 EFFORT TO RELAX FISA STANDARD

The Bush Administration rejected a Congressional initiative in 2002 that would have lowered the legal threshold for conducting surveillance of non-US persons under the Foreign Intelligence Surveillance Act from "probable cause" that the target is a terrorist or agent of a foreign power to "reasonable suspicion."

Administration officials said at the time that the legislative proposal was unnecessary and possibly unconstitutional.

Yet in a speech this week on the NSA domestic surveillance program, Deputy Director of National Intelligence Gen. Michael V. Hayden indicated that the executive branch had unilaterally adopted a similar "reasonable suspicion" standard.

Instead of FISA's more stringent "probable cause" requirement, the presidentially-directed NSA surveillance operation applied to international calls that "we have a reasonable basis to believe involve al Qaeda or one of its affiliates," Gen. Hayden said on January 23.

The unexplained contradiction between the Administration's public rejection of the "reasonable suspicion" standard for FISA, and its secret adoption of that same standard was noted yesterday by attorney and blogger Glenn Greenwald.

See "The Administration's New FISA Defense is Factually False," January 24:

The 2002 legislative proposed, S. 2659 introduced by Rep. Michael DeWine (R-OH), "raises both significant legal and practical issues [and] the Administration at this time is not prepared to support it," said James A. Baker of the Justice Department.

Among other concerns, Mr. Baker said, "If we err in our analysis and courts were ultimately to find a 'reasonable suspicion' standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions."

See Mr. Baker's prepared statement from the July 31, 2002 hearing of the Senate Intelligence Committee here:

The transcript and other prepared statements from that Senate Intelligence Committee hearing on "Proposals to Amend the Foreign Intelligence Surveillance Act" are available here:

CLASSIFICATION LAWS APPLY TO EVERYONE, JUDGE SAYS

In a startling pronouncement that can only heighten tensions between the press and the government, a federal judge said last week that the laws governing classified information apply to anyone who is in receipt of such information, including reporters who are the recipients of "leaks."

"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," said Judge T.S. Ellis III. "That applies to academics, lawyers, journalists, professors, whatever."

Judge Ellis's statement came at the conclusion of a sentencing hearing for Lawrence Franklin, the former Pentagon analyst who was charged along with two former officials of the American Israel Public Affairs Committee (AIPAC) with felony violations of the Espionage Act.

The extraordinary claim that mere possession of classified information triggers legal obligations leads to absurd conclusions, particularly since anyone who reads the daily newspaper comes into "unauthorized possession of classified information."

More importantly, it serves to discourage investigative reporting of illegal government activities that happen to be classified.

The provisions of the Espionage Act to which Judge Ellis was referring are "in many respects incomprehensible," wrote Harold Edgar and Benno C. Schmidt, Jr. in their definitive1973 study "The Espionage Statutes and Publication of Defense Information," Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (Secrecy News, 10/19/05).

Judge Ellis's statement was first reported in "Sentence in Franklin case sends chill through free-speech community" by Ron Kampeas, Jewish Telegraphic Agency, January 24:

Lawrence A. Franklin was sentenced January 20 on three felony counts: conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. See this January 20 news release from the Department of Justice:

The prosecution of the two former AIPAC officials who were charged with Franklin, Steve Rosen and Keith Weissman, raises press freedom issues with even greater urgency since neither of them, unlike Franklin, held a security clearance.

Their attorneys last week filed motions to dismiss the case, but those motions are sealed pending a security review.

HANDBOOK ON MAKING INTELLIGENCE ACCOUNTABLE

To promote intelligence accountability in new democracies and elsewhere, a new publication addresses the principles of intelligence oversight and presents draft legal provisions to govern intelligence. The document is being published in seven languages from Albanian to Ukrainian.

See "Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies" by Hans Born and Ian Leigh, Geneva Centre for the Democratic Control of Armed Forces (DCAF):

NSA DECLASSIFICATION PLAN

The National Security Agency has 46 million pages of historically valuable classified records more than 25 years old that are subject to automatic declassification by the end of December 2006, according to a new NSA declassification plan.

Another 4.5 million pages of 25 year old records have been categorically exempted from automatic declassification because they "contain information relating to our core capabilities and vulnerabilities."

The millions of pages that are subject to "automatic declassification" this year "will require close and careful review," the NSA said.

But NSA "is committed to declassifying national security information as instructed in Executive Order 12958, as amended. The Agency will use all available resources to successfully accomplish the provisions of the E.O. within the required time."

A copy of the new NSA declassification plan was obtained under the Freedom of Information Act by researcher Mike Ravnitzky.

See "NSA/CSS Declassification Plan for Executive Order 12958," Memorandum for Deputy Under Secretary of Defense (Counterintelligence & Security), January 5, 2006:

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

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