SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 35
March 17, 2006

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

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CAPTURED IRAQI DOCUMENTS LOOK STRANGELY FAMILIAR

The Director of National Intelligence yesterday announced the public release of Iraqi documents that were captured by U.S. forces in Operation Iraqi Freedom.

The release came in response to pressure from House Intelligence Chairman Pete Hoekstra and Senator Rick Santorum, who had both introduced legislation to compel disclosure of the captured Iraqi documents, and from The Weekly Standard magazine and the Wall Street Journal editorial board.

"The accessibility of these materials represents an important departure from the past when previous document release efforts have taken many years," the Office of the DNI said in a news release.

But the documents released by the DNI are a decidedly mixed bag.

Illustrating their eclectic nature, one of the captured Iraqi documents is a print-out of an article from the Federation of American Scientists web site.

"This file contains document relevant to the Mukhabarat or Iraqi Intelligence Service (IIS), it explains the structure of the IIS," according to the DNI synopsis of the document (record number CMPC-2003-006430).

In fact, the document was written in 1997 by John Pike (then at FAS, now at GlobalSecurity.org), except for an added cover page which is handwritten in Arabic.

The newly released documents may be found here:

See also "U.S. Reveals Once-Secret Files From Hussein Regime" by Greg Miller, Los Angeles Times, March 17:

The interesting possibility that raw intelligence materials like these could be productively assessed by members of the public working together online was optimistically considered by former intelligence officer Michael Tanji.

"A successful collaborative analysis of Iraqi documents has implications that go beyond just this problem set. Such an endeavor will not go unnoticed by the reform-minded in the intelligence community," he wrote.

See "An Army of Analysts," by Michael Tanji, The Weekly Standard, March 14:

Writing in the blog GroupIntel, Mr. Tanji also had a provocative response to the March 13 Secrecy News story on the new intelligence community document marking "RELIDO."

See his "RELIDO: Why Bother?":

BILL TO AUTHORIZE WARRANTLESS SURVEILLANCE INTRODUCED

Senate Republicans led by Sen. Mike DeWine yesterday introduced a bill (pdf) that would authorize warrantless intelligence surveillance for up to 45 days, after which it could be renewed upon review by the Attorney General.

The bill would require notification to Congress of various aspects of the program.

But significantly, it would impose no external constraints on domestic surveillance by the executive branch.

The bill would also impose penalties of up to $1 million and/or 15 years in prison for unauthorized disclosure of classified information relating to such surveillance activity.

Stung by criticism that this approach could be used to punish reporters who write about illegal government surveillance, the Senators declared that the proposed penalty, in an amendment to 18 U.S.C. 798, "does not apply to journalists."

Thus, while the current 18 U.S.C. 798(a) apparently prohibits unauthorized disclosures of certain specific types of classified information by "any person", the new proposed section 798(b) would only apply to "any covered person," which means someone who has authorized possession of the classified information, but not a reporter or other recipient of the information.

See "DeWine, Graham, Hagel and Snowe Introduce the Terrorist Surveillance Act of 2006," news release, March 16:

On March 13 Sen. Russ Feingold introduced a resolution to censure President Bush for what he described as a violation of the Foreign Intelligence Surveillance Act. See:

SOME NOTABLE DOCS ON OVERCLASSIFICATION, NAVY INTEL

Prepared testimony from a March 14 House Government Reform subcommittee hearing titled "Drowning in a Sea of Faux Secrets" that addressed overclassification, reclassification, and the use of the "sensitive but unclassified" control marking can be found here:

"Congressional Notification of Intelligence Activities, Intelligence Related Activities, Special Access Programs, and Covert Actions Within the Department of the Navy" is the subject of Secretary of the Navy Instruction 5730.13A, updated February 1, 2006 (badly scanned by the Navy into a large 5 MB PDF file):

TRANSCRIPT OF FRANKLIN SENTENCING HEARING ONLINE

"All persons who have authorized possession of classified information, and persons who have unauthorized possession, who come into possession in an unauthorized way of classified information, must abide by the law. They have no privilege to estimate that they can do more good with it."

"So, that applies to academics, lawyers, journalists, professors, whatever. They are not privileged to disobey the laws, because we are a country that respects the rule of law."

Thus spoke Judge T.S. Ellis, III, in a January 20, 2006 sentencing hearing for former Defense Department official Lawrence A. Franklin, who was convicted of unauthorized disclosures of classified information. His remarks were first reported (in slightly truncated form) by the Jewish Telegraphic Agency.

Judge Ellis' statement was extraordinary because it appeared to endorse the new Bush Administration theory that not only leakers but also unauthorized recipients of classified information can be prosecuted for retaining or disclosing such information to others.

This reading of the law, which has never prevailed before, could now be used against academics, lawyers, newsletter writers, newsletter readers, whatever.

It is currently being tested in the prosecution of two former employees of the American Israel Public Affairs Committee, who are accused of mishandling classified information that was provided to them by Mr. Franklin. Neither of the two AIPAC employees held a security clearance.

A copy of the transcript of the January 20 sentencing hearing at which Judge Ellis made his surprising remarks was obtained by Secrecy News, and is posted here (1.2 MB PDF file):

See, relatedly, "Suppression of witness names underlines battle in AIPAC case" by Ron Kampeas and Matthew E. Berger, Jewish Telegraphic Agency, March 15:

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

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