SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 98
October 8, 2007

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

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BILL ON CONTRACTOR LIABILITY RAISES INTEL AGENCY CONCERNS

Last week the House of Representatives passed a bill to extend federal legal jurisdiction to crimes committed abroad by U.S. contractors in war zones such as Iraq, so that such crimes could be prosecuted in U.S. courts.

But before the bill (H.R. 2740) was passed, it triggered alarms by those who were concerned that its provisions could undermine U.S. intelligence activities.

"The bill would have unintended and intolerable consequences for crucial and necessary national security activities and operations," the White House said without elaboration in an October 3 statement outlining its opposition to the bill.

Congressman J. Randy Forbes (R-VA) spelled out those intelligence agency concerns in more detail on the House floor.

For example, he said, "If a clandestine asset was implicated in a crime, investigating and arresting that asset under traditional criminal procedures could expose other assets and compromise critical intelligence activities."

More fundamentally, he complained, the new bill "applies the entire criminal code to the new category of potential offenders and could implicate the authorized business of the intelligence community employees and contractors."

Rep. Forbes therefore introduced a motion stating that "Nothing in this Act shall be construed to affect intelligence activities that are otherwise permissible prior to the enactment of this Act."

The motion was approved, but not without some critical commentary.

"The [Forbes] amendment raises serious questions about the activities its proponents may be seeking to protect," said Rep. David Price (D-NC), who authored the new bill.

"Given that my bill only targets activities that are unlawful, why do my colleagues feel the need to clarify that it does not affect activities that are permissible?"

"What activities are contractors carrying out that are permissible but not lawful?" Rep. Price wondered aloud.

"If there are private, for-profit contractors tasked with duties that require them to commit felony offenses, Congress needs to know about it. Such a revelation would point to a need for a serious debate about whether we are using contractors appropriately," he said.

See the October 4 House debate on the new bill, the "Military Extraterritorial Jurisdiction Act Expansion and Enforcement Act of 2007," which was passed by a large majority, here:

The awkward fact is that intelligence collection operations are routinely conducted in violation of established laws, including international legal norms to which the United States Government is formally committed.

"The CS [clandestine service] is the only part of the IC [intelligence community], indeed of the government, where hundreds of employees on a daily basis are directed to break extremely serious laws in counties around the world in the face of frequently sophisticated efforts by foreign governments to catch them," according to a 1996 House Intelligence Committee staff report called IC21 (chapter 9, at page 205).

"A safe estimate is that several hundred times every day (easily 100,000 times a year) DO [Directorate of Operations] officers engage in highly illegal activities (according to foreign law) that not only risk political embarrassment to the US but also endanger the freedom if not lives of the participating foreign nationals and, more than occasionally, of the clandestine officer himself."

1997 REPORT OF THE OVERSEAS JURISDICTION ADVISORY COMMITTEE

A decade ago Congress established an advisory committee to examine the very issues of contractor liability in war zones abroad that have recently been in the headlines again.

The Overseas Jurisdiction Advisory Committee spent a year analyzing the state of the law, found "significant jurisdictional gaps" in the government's ability to prosecute crimes committed abroad by contractors, and recommended legislative remedies.

The Committee's extensive report laid the foundation for the 2000 Military Extraterritorial Jurisdiction Act, which applied to defense contractors, and which would be extended by now-pending legislation to non-defense contractors as well.

Up to now, the Committee's report has not been available online, rendering it practically inaccessible. A copy of the report obtained by Secrecy News is now available on the Federation of American Scientists web site.

See the Report of the Advisory Committee on Criminal Law Jurisdiction Over Civilians Accompanying the Armed Forces in Time of Armed Conflict (Overseas Jurisdiction Advisory Committee), April 1997:

JPL SCIENTISTS GAIN REPRIEVE FROM INTRUSIVE INVESTIGATIONS

A federal appeals court on Friday granted a temporary injunction blocking implementation of a policy that would require scientists at the Jet Propulsion Laboratory to undergo intrusive background investigations as a condition of continued employment.

The requirement stems from President Bush's Homeland Security Presidential Directive 12, under which all federal employees and contractors are obliged to obtain secure forms of federal identification.

As interpreted by NASA, this provision means that JPL employees must not only provide verifiable proof of identity, which all are willing to do, but must also accept an open-ended background investigation into their personal conduct.

Under the NASA standard, according to critics, "any investigator" from "any federal agency" would be permitted to collect "any information" regarding the employee.

Dozens of JPL scientists said no.

A lower court rejected their request for an injunction against the policy on October 3. But the appeals granted it on October 5, until further proceedings can be held. For background on the case see:

"We cannot drive scientists into our laboratories," said President Truman in a September 13, 1948 speech to the AAAS, "but, if we tolerate reckless or unfair attacks, we can certainly drive them out."

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

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