SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 32
March 10, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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MORE ON THE "INCOMPREHENSIBLE" ESPIONAGE ACT OF 1917

The Espionage Act is "in many respects incomprehensible," wrote Harold Edgar and Benno C. Schmidt, Jr. in a definitive law review article three decades ago which explored the potential use of the Act to prosecute leaks to the media.

The espionage statutes are "so sweeping as to be absurd," they argued (previously noted in Secrecy News, 10/19/05).

"If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality."

Now a scan of that 1973 paper is available online.

See "The Espionage Statutes and Publication of Defense Information," Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (a large 6.3 MB PDF file):

Though it remains the best account of the legislative history of the Espionage Act, the Edgar/Schmidt article is not the last or the latest word on the meaning of the Act. In particular, the prosecution of Samuel L. Morison in 1985 for providing classified satellite photos to Jane's Defence Weekly established that the Espionage Act could be used to successfully prosecute leakers.

An article in the current issue of Commentary Magazine now calls for the prosecution of the New York Times for disclosing the NSA warrantless surveillance activity.

Though many experts consider the NSA program to be illegal because it violates the clear language of the Foreign Intelligence Surveillance Act, Commentary author Gabriel Schoenfeld argues that disclosure of the program is the crime that should be investigated and prosecuted.

That perspective is examined in "Bill Keller in Chains: Commentary's case for prosecuting the Times under the Espionage Act" by Jack Shafer, Slate, March 9:

CIA ON THE PRESIDENT'S DAILY BRIEF

Some new details on the preparation of the President's Daily Brief (PDB) and its presentation to the President and a small number of other officials are discussed in a Central Intelligence Agency declaration filed last week in the prosecution of former Vice Presidential aide I. Lewis "Scooter" Libby.

"Six mornings a week, intelligence briefers meet with the President and selected senior Executive officials to provide a daily intelligence briefing. Each briefer meets with one or more designated officials to present an oral briefing and a binder containing written materials for each official's review," wrote CIA official Marilyn A. Dorn.

She argued in her declaration that responding to Mr. Libby's request for production of various PDBs and related material would be extremely burdensome and might also infringe on executive privilege.

See her March 2, 2006 declaration (filed March 3) here:

A March 7 response from Mr. Libby is available here:

The CIA has agreed to process a Freedom of Information Act request from the Federation of American Scientists for redacted PDB materials that it had declassified and provided to the Office of Special Counsel.

But the Agency denied a request for fee waiver because, CIA official Scott Koch wrote on March 3, "disclosing the information you seek is not likely to contribute significantly to public understanding of the operations and activities of the United States Government."

ARMY INTELLIGENCE ON ARAB CULTURE

U.S. Army intelligence has produced a handbook that is intended "to provide soldiers with a basic overview of Arab culture."

It begins with "Where is the Arab World?" and "What is an Arab?" and proceeds onward to brief and elementary discussions of Arabic language, culture, and politics.

Viewing the Arab world in this way, Army intelligence also puts itself on display in the questions it poses and the answers it offers, but it does so with some self-awareness and with nothing more offensive than an occasional cliche.

"It is impossible to talk about groups of people without generalizing," the document explains. "It then follows that it is hard to talk about the culture of a group without generalizing. This handbook attempts to be as accurate and specific as possible, but inevitably contains such generalizations."

A copy of the new Handbook was obtained by Secrecy News.

See "Arab Cultural Awareness: 58 Factsheets," DCSINT Handbook No. 2, Deputy Chief of Staff for Intelligence, US Army Training and Doctrine Command, January 2006:

THE JAMES MADISON AWARD AND SUNSHINE WEEK

Secrecy News is grateful to be recognized by the American Library Association (ALA) with its James Madison Award, which is "presented annually on the anniversary of his birth (March 16) to honor those who have championed, protected, and promoted public access to government information and the public's right to know."

"This award is, we believe, a fitting recognition of your effective voice for transparency and against unnecessary -- and often pointless -- government secrecy," wrote ALA President Michael Gorman.

"Your publication, Secrecy News, contains invaluable information and often serves as the first notice to the public of proposals to limit access to information."

"The Project on Government Secrecy web site is a critical resource for all those concerned with access and secrecy issues. It contains a remarkable range of information on government secrecy policy and often is the only place that much of the information can be located," Mr. Gorman generously wrote.

Presentation of the award is one of several ALA activities scheduled for Sunshine Week, which is next week, March 12-18. See this ALA news release.

Details of other Sunshine Week programs and resources can be found on the Sunshine Week web site here:

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

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