SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 74
July 28, 2008

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

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JUSTICE DEPT NATIONAL SECURITY DIVISION DRAWS CRITICISM

The Department of Justice National Security Division (NSD) that was formed in 2006 by the merger of several DOJ intelligence and national security elements is attracting criticism from some intelligence officials who say that it is biased in favor of the FBI or, alternatively, that it lacks the agility that an intelligence organization needs.

NSD was established in response to a recommendation of the 2005 Silberman-Robb Commission on Weapons of Mass Destruction. NSD combined the Office of Intelligence Policy and Review (OIPR), which processed applications for domestic surveillance under the Foreign Intelligence Surveillance Act, together with Criminal Division sections on Counterespionage and Counterterrorism in order, the WMD Commission said, to "give the [united] office better insight into actual intelligence practices and make it better attuned to operational needs."

Though it has gone unremarked, NSD is now led largely by former officials of the Federal Bureau of Investigation.

The Division head, J. Patrick Rowan, was a special counsel in the FBI. Matthew G. Olsen, who now heads the NSD Office of Intelligence (formerly OIPR), was also an FBI special counsel. (Previously, OIPR was led by James A. Baker, a career civil servant.) Charles Steele, who serves as section chief for Intelligence Operations in the Office of Intelligence, is a former chief of staff to the FBI director.

"OIPR's strength was its independence," wrote one Secrecy News correspondent who is an intelligence community employee. "Now it seems to function as an arm of the FBI. This is a step back to the 1960s."

That claim was disputed by an intelligence official in another agency, who said the fact that these individuals worked at FBI is "almost irrelevant. There is a problem, but that's not it."

"The problem," this official said, "is that every one is a former prosecutor. None of them knows much about intelligence or about FBI operations. They're very good at what they do, but what they do is not intelligence."

NSD, this official said, is "broken." "The counterespionage section is stuck in the 1980s. Counterterrorism is pretty good. Oversight works okay, up to a point." But, from his perspective, the FISA review process is still "infected" with a law enforcement mentality.

FISA reviewers at NSD "keep asking for things they don't need and should not have," he said. Like what? Like "who is the source of this information?" or "How much was this source paid?"

Doesn't the record number of FISA authorizations being processed by NSD provide compelling evidence that inappropriate barriers to surveillance, if any, have been lowered?

"Not really," according to the official. "The high numbers are largely due to renewals" of previous authorizations. "The cases get a better scrub from FBI than from NSD."

Is he proposing that intelligence officers staff the NSD? "No, you need lawyers, but lawyers with stronger intelligence backgrounds. There aren't so many of those."

Current and former Justice officials contacted by Secrecy News declined to comment. Inquiries to the Justice Department Office of Public Affairs were not answered.

GOVT FILES APPEAL IN AIPAC CASE

Prosecutors in the trial of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information filed a pre-trial appeal on Friday. The district court, they said, should not have ruled that two particular classified documents were admissible into evidence.

In appealing the admissibility of those documents, the prosecutors also took aim at a 2006 court ruling that imposed a high burden of proof on the government to show that the defendants had specific intent, among other things, to harm the United States or benefit a foreign country. Without such a showing of intent, the Espionage Act provisions under which they are charged would be unconstitutional, the lower court ruled in 2006. (See "Ruling in AIPAC Case Interprets Espionage Act Narrowly," Secrecy News, 02/20/07).

In its appeal, the government blasted that prior ruling.

"The district court not only manufactured unwise and unnecessary new elements of a federal criminal offense, but in doing so exceeded its constitutional authority and replaced its judgment for that of the Congress," prosecutors wrote.

If their reasoning were to prevail, then anyone who deals with classified information without official authorization, as many national security reporters and others routinely do, could conceivably be subject to prosecution under the Espionage Act.

The partially redacted appeal brief also appeared to reframe the AIPAC case as a traditional espionage matter, stressing the unauthorized disclosure of classified information to the government of Israel and downplaying the alleged unauthorized disclosures to the press and other persons that were prominent in the original indictment.

"Clandestinely obtaining and passing U.S. government classified information to the Israeli government does not represent participation in a 'public debate' to 'influence United States foreign policy.' The fact that defendants may have at some point in the conspiracy mixed lawful conduct with their illegal conspiracy to obtain and disclose NDI [national defense information] is irrelevant," prosecutors argued.

See the Brief of the United States presented to the Fourth Circuit Court of Appeals on July 25:

The trial of the two defendants, Steven Rosen and Keith Weissman, has most recently been re-set for October 28.

The new government brief was also reported in "Prosecutors Argue for More Secrecy in Aipac Case" by Josh Gerstein, New York Sun, July 28:

WYDEN SEEKS DECLASSIFICATION OF FISA COURT OPINIONS

Senator Ron Wyden (D-OR) wrote to the Public Interest Declassification Board (PIDB) last week to request that it review the classified opinions of the Foreign Intelligence Surveillance (FIS) Court from the last ten years and make recommendations regarding their classification or declassification.

The FIS Court not only grants (or, rarely, denies) authorization for domestic intelligence surveillance. It also from time to time reinterprets the requirements of the Foreign Intelligence Surveillance Act, producing a secret body of common law.

In response to a motion filed by the ACLU last year, Judge John D. Bates of the FIS Court acknowledged that the Court had issued several "legally significant decisions that remain classified." The anomaly of secret law, including classified FISA court rulings, was explored in an April 30, 2008 hearing before a Senate Judiciary subcommittee chaired by Sen. Russ Feingold.

"It is impossible for Congress to evaluate the effectiveness of the nation's surveillance laws without a thorough understanding of how the court is interpreting those laws," wrote Sen. Wyden. "This is exactly the kind of issue that the Public Interest Declassification Board was created to tackle."

The PIDB is a congressionally-chartered presidential advisory board that is supposed to provide recommendations on classification policy and to review the classification status of contested documents. It is composed of private sector personnel appointed by the President and the Congress. The current chairman is Martin Faga, a former director of the National Reconnaissance Office.

Although the PIDB statute authorizes the Board to act on congressional requests, such requests are supposed to be "made by the committee of jurisdiction," not by individual members. Consequently, it is uncertain whether the PIDB will act upon Senator Wyden's letter. PIDB officials were not immediately available for comment.

A copy of Senator Wyden's July 25 letter and news release is here:

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

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