SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 72
June 29, 2006

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

Support Secrecy News: http://www.fas.org/static/contrib_sec.jsp

"SEALED V. SEALED": HOW COURTS CONFRONT STATE SECRETS

The government's increasing use of the "state secrets privilege" to resist civil litigation on national security matters has often been met by courts with uncritical, even abject deference to the executive agencies that invoke the privilege. But another, more assertive response is possible.

"The state secrets privilege is absolute," wrote Judge Royce C. Lamberth categorically in a newly disclosed decision from July 2004.

In that case, former DEA agent Richard Horn alleged that his phone had been illegally wiretapped by the U.S. government when he served in Myanmar (Burma) in 1993. The government asserted the state secrets privilege and moved for dismissal.

Plaintiff Horn then proposed that the provisions of the Classified Information Procedures Act (CIPA) be adapted to permit the secure adjudication of classified information in his lawsuit, as is done in certain criminal trials such as espionage cases.

But, Judge Lamberth reasoned, "If the Court adopted CIPA,... the [state secrets] privilege would not be absolute." So he simply dismissed the case.

Horn's lawsuit -- Horn v. Huddle, D.C. District Case No. 94-1756 -- is sealed. It does not appear in the public docket of the D.C. District Courthouse. Instead, it is tagged "SEALED v. SEALED" with the annotation "Case is not available to the public."

But a redacted copy of Judge Lamberth's July 28, 2004 order dismissing the case was obtained by Secrecy News. It is available here:

A markedly different judicial response to a state secrets claim may be emerging in a current lawsuit brought by the Electronic Frontier Foundation alleging unlawful domestic surveillance.

Instead of simply granting "absolute" deference to the government whenever it asserts the state secrets privilege, the Court admitted that there are multiple interests at stake that must somehow be reconciled:

"How can the court minimize the conflict between plaintiffs' right to litigate this case and the government's duty to protect state secrets?" Judge Vaughan R. Walker asked the parties in a January 20 order:

"Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise," argued constitutional scholar Louis Fisher in a new op-ed. "It would let self-serving assertions by one of the litigants usurp the judge's authority."

See "State Your Secrets" by Louis Fisher, Legal Times, June 26 (reprinted with permission):

A critical view of the Bush Administration's use of the state secrets privilege was presented in "The Bush Code of Secrecy" by Mark Follman, Salon, June 23:

Last March, the Central Intelligence Agency asserted the state secrets privilege in a somewhat mysterious case called Jane Doe v. CIA, and moved for dismissal. Last week, Mark S. Zaid, the attorney for "Jane Doe," asked the Court not to dismiss the case. See:

"The privilege has been used in this administration more than any other administration," according to University of Texas-El Paso professor William Weaver.

"Depending on how you count it, it's been asserted ... between 19 and 21 times," he told National Public Radio on June 19.

HOW DID U.S. ASSESS IRAQI BIOWEAPON PRODUCTION?

One of the most vivid allegations made by the U.S. government regarding Iraqi weapons of mass destruction was the claim that Iraqi had developed mobile laboratories for the production of biological weapons. The allegation, based on reports from a source known as "Curveball," proved to be false.

But the U.S. intelligence assessment of the supposed mobile BW labs, though erroneous, raised questions that still remain unanswered, wrote bioweapons expert Milton Leitenberg of the University of Maryland.

According to a cryptic reference spotted by Leitenberg in the Silberman-Robb WMD Commission report, U.S. contractors performed a "replication" of the Iraqi design and found that "it works."

The exact nature of this "replication" and whether it led to the production of actual BW agents are among several lingering questions he posed.

See "Unresolved Questions Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq" by Milton Leitenberg, June 2006:

DHS, CRS ON SENSITIVE SECURITY INFORMATION

"Sensitive Security Information (SSI) is information that would be detrimental to transportation security if publicly disclosed," according to a Department of Homeland Security directive released last week under the Freedom of Information Act.

See DHS Management Directive 11056, "Sensitive Security Information," December 16, 2005:

Confusingly, however, SSI is also a control marking used by the Department of Agriculture to mean something quite different, observed information policy expert Harold C. Relyea of the Congressional Research Service in a new report on classification and other information controls.

SSI "is both a concept and a control marking used by the Department of Agriculture (USDA), on the one hand, and jointly by the Transportation Security Administration (TSA) of the Department of Homeland Security as well as by the Department of Transportation, on the other hand, but with different underlying authorities, conceptualizations, and management regimes for it," he wrote.

See "Security Classified and Controlled Information: History, Status, and Emerging Management Issues," June 26, 2006:

While the number of different designations for "sensitive but unclassified" information has been estimated at over 60, that number approaches 100 if different agency definitions of the same designation are taken into account, a Justice Department official told Secrecy News.

FACING DEATH: MORTUARY AFFAIRS IN JOINT OPERATIONS

In a somewhat gruesome but unblinking new publication prepared for the Joint Chiefs of Staff, the U.S. military prescribes doctrine for the recovery, identification, handling and burial of deceased soldiers, enemy combatants and civilian detainees.

The violent, horrible death of combatants and non-combatants is of course a defining characteristic of war. And the strange efforts by the Bush Administration to prevent the media from photographing flag-draped coffins of soldiers killed in Iraq (until a lawsuit overturned the policy last year) did nothing to change this reality.

The new doctrinal publication anticipates that the casualties of war may be mutilated or dismembered. They may be dangerously contaminated with chemical or biological agents or radioactive materials. Mass casualties may overwhelm existing facilities, forcing improvised solutions such as mass interment.

The publication stresses the dignified treatment of the dead, and includes summary accounts of the rituals associated with Protestant, Catholic, Jewish and Muslim religious traditions. ("Other than common respect, Buddhists do not have any particular requirements concerning the handling of human remains following death.")

See "Mortuary Affairs in Joint Operations," Joint Publication 4-06, June 2006 (195 pages, 2.5 MB):

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

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