SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 8
January 22, 2007

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CRS DIRECTOR MOVES TO RESTRICT ANALYSTS' MEDIA CONTACTS

The Director of the Congressional Research Service last week issued a revised agency policy on "Interacting with the Media" that warns CRS analysts about the "very real risks" associated with news media contacts and imposes new restrictions on speaking to the press.

"CRS staff must report within 24 hours all on-the-record interactions with any media to their supervisor, including the name of the reporter, media affiliation, date, time, and detailed notes on the matters discussed or to be discussed," the new policy states.

"Violations of the media policy will be addressed promptly," wrote CRS director Daniel P. Mulhollan.

A copy of the CRS policy on "Interacting with the Media" was obtained by Secrecy News.

The new policy "will obviously have a chilling effect on staff," said one CRS analyst on a not-for-attribution basis. "That's what it is intended to do."

The CRS has gained increasing prominence in the news media in recent years. The number of citations to CRS in the Nexis news database rose from 2,076 in 2004 to 3,101 in 2005 to 4,179 in 2006.

This growing public attention is a source of anxiety for CRS management, which fears that the agency may come to be perceived as having an institutional agenda of its own or that its impartiality will be questioned by members of Congress.

"We have all seen the way in which portions of products can be misquoted and taken out of context, potentially damaging the image of our colleagues and the Service in the eyes of some of our clients," CRS director Mulhollan wrote.

"To assist CRS in refuting misstatements or misquotations, staff must keep detailed notes of media interactions and report promptly to their supervisor," he instructed.

But the relative impartiality of the CRS and its analysts' quasi-official standing make it an attractive resource for reporters covering all kinds of domestic and foreign policy matters.

The new restrictions on CRS contacts with the press will therefore be a blow first of all to reporters and others who rely on CRS expertise.

Over time, however, the new policy may also backfire against CRS itself. If analysts cannot publish or freely comment on subjects of their expertise, some will conclude that CRS is not a hospitable venue for their professional development and they will go elsewhere.

"From my personal perspective CRS is being managed without respect and trust for the staff," said Dennis M. Roth, president of Congressional Research Employees Association, the CRS employees' union, in July 27, 2006 testimony to the House Administration Committee.

"Leadership can be accomplished in many ways, and we believe that CRS currently practices a style inappropriate, damaging, and destructive for a professional service organization.... It is autocratic, centralized, and secretive," he said.

THE STATE SECRETS DOCTRINE AND THE HATFILL CASE

In an unusual legal maneuver, the New York Times invoked the "state secrets" doctrine last month in a motion to dismiss the libel suit brought against it by Steven J. Hatfill, the former Army scientist who said he was erroneously linked by the Times to the 2001 anthrax attacks.

The case was dismissed on January 12, 2007 on other grounds (to be spelled out in an opinion that has not yet been published).

But in a sealed motion on December 29, the New York Times argued that the classification restrictions imposed on the case were tantamount to an assertion of the state secrets privilege. Times attorneys cited the case law on state secrets to support their argument that the case should be dismissed.

The "state secrets" doctrine, they said, "precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is... necessary to support a valid defense. Dismissal is warranted in this case because the Times has been denied access to such evidence, specifically documents and testimony concerning the work done by plaintiff [Hatfill] on classified government projects relating to bioweapons, including anthrax."

"It would be manifestly unjust and improper to require the Times to defend against the claims being advanced by Steven Hatfill without affording it access to critical information concerning his own activities that could serve to defeat those claims."

"The government has not formally intervened in this case to assert the [state secrets] privilege, as it has typically done in analogous cases," the Times acknowledged in an accompanying memorandum of law.

"Nevertheless, ... it is now evident that the government has in fact invoked the privilege through ex parte evidentiary submissions by DOD, the Department of Justice and the CIA establishing that information concerning projects worked on by plaintiff and his colleagues were properly 'classified'," the Times' attorneys claimed.

A redacted copy of the December 29 New York Times Memorandum of Law in Support of Defendant's Motion for an Order Dismissing the Complaint Under the "State Secrets" Doctrine was obtained by Secrecy News. See:

Attorneys for Dr. Hatfill filed a sealed response on January 12 in opposition to the motion for dismissal on state secrets grounds. A redacted copy of their opposition was not immediately available.

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

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