SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 70
July 17, 2008

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REPORTER BILL GERTZ ORDERED TO TESTIFY ON "NEWSWORTHINESS"

Washington Times reporter Bill Gertz has been ordered to appear in a California court next week and to testify on the "newsworthiness" of his reporting in 2006 on a case involving alleged Chinese espionage.

Mr. Gertz was subpoenaed by the court on April 30 and ordered to reveal who disclosed restricted grand jury information to him. Mr. Gertz's attorneys moved to quash the subpoena, arguing among other things that grand jury information had not in fact been revealed and that Mr. Gertz had a First Amendment interest in protecting his sources (Secrecy News, June 11).

While the motion to quash is still pending, Mr. Gertz is nevertheless required to appear in court on July 24.

"Regardless of whether Mr. Gertz discloses his sources, the Court expects that Mr. Gertz will be prepared to testify regarding the newsworthiness of this case and, more particularly, the reasons why maintaining the confidentiality of his sources is critical to his ability to engage in investigative reporting," wrote Judge Cormac J. Carney.

"If the Court is to properly evaluate Mr. Gertz's First Amendment arguments [against disclosure of his sources], Mr. Gertz must particularize them to this case," Judge Carney instructed in a Minute Order filed July 14.

Justice Department attorneys had sought to delay the proceedings, and had filed a sealed, ex parte declaration with the Court to justify their position. When Judge Carney indicated that he would unseal the declaration, the Justice Department asked him not to do so since it would reveal internal Department deliberations that apparently remain unresolved.

"The [sealed] declaration describes discussions that have occurred within DOJ regarding the position the government should take in response to the court's subpoena of Mr. Gertz and explains that no decision on that issue has yet been made," according to a government pleading filed yesterday.

In any event, "The subpoena for Mr. Gertz was issued by the Court, not the Government," Judge Carney wrote. "If the Government is unable to participate,... the hearing will nonetheless go forward."

The latest developments in the case were first reported by Josh Gerstein in "Advocates Concerned About a Reporter's Court Appearance," New York Sun, July 17.

HOUSE APPROVES 2009 INTELLIGENCE BILL DESPITE VETO THREAT

The House of Representatives yesterday overwhelmingly approved its version of the Fiscal Year 2009 intelligence authorization act, including new requirements that the executive branch provide more complete briefings for all members of the intelligence oversight committees. The White House threatened a veto if that and other provisions were enacted (Secrecy News, July 16).

"This bill is about ensuring the proper oversight of our nation's intelligence agencies and that the administration complies with the law requiring Congress be kept fully and currently informed," said Rep. Pete Hoekstra (R-MI). "There may be concerns with the bill, but I am not sure they rise to the veto level unless the objection is to proper oversight."

"I am very glad that 75 percent of the dollars for covert action have been fenced [until reporting requirements are fulfilled]," said Rep. Anna Eshoo (D-CA). "In other words, no notification from the administration and from the intelligence community, no money. And that's the way it should be."

"As someone who sat through countless hours of Intelligence Committee hearings and briefings, I have been appalled by the unwillingness and outright stonewalling of the Bush Administration when Members have asked even the most basic of questions about our intelligence community policies and practices," said Rep. Alcee L. Hastings (D-FL).

"I think it would be sufficient to say that this administration has taken a cavalier attitude toward its legal obligations to keep the committees fully and currently informed," said Rep. Rush Holt (D-NJ).

The floor debate also addressed funding for space surveillance systems, said by some to be inadequate, and the role of contractors in intelligence activities.

FEASIBILITY OF IMPROVED INFORMATION SHARING ASSESSED

A newly disclosed report to Congress explores the feasibility of eliminating the use of markings that restrict the sharing of information within the "information sharing environment" that encompasses federal agencies as well as state, local and tribal entities.

The March 2008 report from the Program Manager of the Information Sharing Environment describes how agencies are grappling with conflicting imperatives to share and to secure information, while trying to reconcile inconsistent information handling policies. The process has not yet reached a resolution.

"The Office of the Director of National Intelligence is currently evaluating the best solution for managing the goal of maximum interagency sharing of national security information with that of protecting the sources and methods on which the IC depends to gather such information," the report says.

The report evaluates and rejects an approach that would simply permit access to information needed for any "authorized use," since this would conflict with various statutory requirements and agency regulations that limit access based on privacy and other concerns. The alternative approach would not be feasible without "legislation making clear that this 'authorized use standard' supersedes any contravening privacy-related laws or regulations."

The report also considers "anonymization" of information to obscure sensitive source or privacy-protected information, and it includes a brief discussion of the potential for unauthorized reversal of the anonymization process.

The previously undisclosed report was prepared in response to a requirement in section 504 of the Implementing the 9/11 Commission Recommendations Act of 2007. A copy was obtained by Secrecy News.

See "Feasibility Report," Report for the Congress of the United States, prepared by the Program Manager, Information Sharing Environment, March 2008:

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

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