SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 43
April 24, 2007

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PRESIDENTIAL SECRECY AND THE LAW

Presidential secrecy is best understood not as an expression of executive strength but as a sign of weakness and insecurity, according to a provocative new book on the subject.

"When the president lacks diplomatic or interpersonal skill, he is likely to compensate by shielding his activities -- even shielding his very self -- from the public, relying on secrecy rather than diplomacy," write political scientists Robert M. Pallitto and William G. Weaver in "Presidential Secrecy and the Law."

The authors explore how the growth of executive branch secrecy has transformed the institution of the presidency and the character of American government.

Secrecy, they say, "has depoliticized the president's role in governmental action. Where a president may do what is desired in secret, there is no reason to withstand the ordeal of a political battle to achieve the same ends."

"Increasingly, our governmental institutions are unable to hold the president accountable for actions undertaken in secret in the name of national security. In a subtle but sweeping way, this failure is working detrimental changes in our federal government institutions."

The authors review the landscape of national security secrecy and the accumulation of unchecked executive authority and they proceed to critique the performance of the legislative and judicial branches.

Legislative initiatives such as the War Powers Act and the Foreign Intelligence Surveillance Act that were intended to restrain the executive branch have consistently backfired, they contend, serving instead to legitimize the presidential actions that they were intended to restrict.

"As counterintuitive as it may seem, we conclude that congressional efforts to control executive abuse in areas of purported national security concerns are ill-advised. These efforts insulate the president and establish a bureaucratic machinery and process for engaging in precisely the kinds of activity that were meant to be avoided."

"We argue that aggressive action to control executive branch abuse of secrecy should not come from Congress but from the courts, which are in a position to provide the scrutiny necessary to discourage presidential abuse of secrecy powers."

For more information, see "Presidential Secrecy and the Law" by Robert M. Pallitto and William G. Weaver, Johns Hopkins University Press, 2007:

A White House obsession with secrecy should not be confused with a commitment to good security. Rep. Henry Waxman yesterday itemized several gross violations of classified information security policy in the Bush White House and called upon former White House chief of staff Andrew Card to explain security practices during his tenure.

PENTAGON PROPOSES NEW ACCESS RESTRICTIONS

The Department of Defense has asked Congress to enact two expansive new provisions in the FY 2008 defense authorization act to help it restrict public access to information.

One of the provisions would create a new exemption to the Freedom of Information Act for certain unclassified information related to weapons of mass destruction (WMD). The other would establish civil and criminal penalties for the unauthorized publication or sale of maps and images ("geodetic products") that the Secretary of Defense has designated for "limited distribution."

The proposed exemption for unclassified WMD information, which was proposed and rejected by Congress last year (SN, 04/18/06), is exceptionally broad in scope.

Its definition of "weapons of mass destruction" even extends to devices that are not lethal, as long as they may cause "serious bodily injury to a significant number of people" (50 U.S.C. 2302).

The Pentagon's argument for the exemption is further undermined by the assertion that without it, unclassified information could "easily" assist a terrorist to make or use a weapon of mass destruction. The notion that terrorism is "easy," popular with some New York Times op-ed writers and other lazy persons, was memorably dissected by George Smith of GlobalSecurity.org (SN, 08/16/05).

The second provision to penalize "inappropriate disclosures" of geodetic information, "including postings of such products on the internet," originated with the Defense Criminal Investigative Service (DCIS), which said it could not effectively protect these unclassified maps and images without a new criminal prohibition.

"For several years, products bearing the LIMDIS [limited dissemination] caveat have wrongfully been offered for sale to the public ... on eBay or displayed on internet sites. To date, DCIS efforts to prosecute the eBay sellers have not been successful."

An organization that engaged in unauthorized disclosure or dissemination of such materials would be subject to a penalty of "not more than $500,000 for each violation...."

The text of the two proposed Pentagon access restrictions, with accompanying explanation and justification, may be found here:

VARIOUS RESOURCES ON INTELLIGENCE AND SECURITY

Some notable new or newly-acquired publications include these:

"Physical Security Program," Department of Defense Regulation 5200.08-R, April 9, 2007:

"National Defense Intelligence College," Department of Defense Instruction 3305.01, December 22, 2006:

"Intelligence, Surveillance, and Reconnaissance: Preliminary Observations on DOD's Approach to Managing Requirements for New Systems, Existing Assets, and Systems Development," U.S. Government Accountability Office testimony [GAO-07-596T], April 19, 2007:

"Bioterrorism and Biocrimes: The Illicit Use of Biological Agents Since 1900" by W. Seth Carus, August 1998 (rev. February 2001):

AIPAC TRIAL LIKELY TO BE POSTPONED

The unprecedented trial of two former officials of the American Israel Public Affairs Committee, who are charged under the Espionage Act with unlawful receipt and disclosure of national defense information, is likely to be postponed from its scheduled start date on June 4.

The need to resolve disagreements between the parties over the handling of classified information involved in the case will "knock the trial date into a cocked hat," said Judge T.S. Ellis, III at an April 19 hearing.

The Judge gave prosecutors until May 2 to decide whether they will propose a new set of "substitutions" for classified evidence, which would then need to be reviewed by the defense and the court under the provisions of the Classified Information Procedures Act.

Alternatively, prosecutors may decide to stand fast with their previous proposal to bar public access to the classified evidence, a position that the judge has already rejected, thereby setting the stage for an appeal.

Judge Ellis issued a detailed memorandum opinion on April 19 to explain why he concluded that the prosecution proposal to exclude public access to classified evidence is not authorized by statute or precedent.

The memorandum opinion advised the government that any proposal to exclude public access to classified evidence would have to be thoroughly supported by "a highly detailed explanation of the ensuing harms to national security... [since] much of the classified information at issue [here] is not self-evidently damaging to national security."

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

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