SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 20
February 27, 2009

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

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COURT FAVORS ATTORNEY'S RIGHT TO CLASSIFIED INFO

A federal court this week said that litigants have a First Amendment right to provide classified information to their attorneys when doing so is necessary to protect their interests. The ruling is implicitly at odds with a common government practice of denying attorneys access to classified information in Freedom of Information Act cases, pre-publication review disputes, and other matters.

There is a "First Amendment right to share [classified] information with an attorney when such sharing is necessary for an attorney to advise his client of his rights," wrote Judge Gladys Kessler of the DC District Court.

The ruling came in a lawsuit brought by former Defense Intelligence Agency employee Anthony Shaffer against the DIA in connection with the controversial intelligence program known as Able Danger. DIA sought to bar Shaffer from providing classified information about the program to his attorney, Mark S. Zaid, even though he holds a security clearance. Mr. Zaid challenged the denial, and the court found merit in his complaint.

"Without knowing all that his client, and the Defendants, know, Plaintiff Shaffer's counsel cannot be prepared to adequately represent his client's interests," Judge Kessler concluded.

Executive branch agencies have frequently barred attorneys from access to classified information in civil litigation, effectively driving a wedge between the litigant and his counsel, particularly in disputes involving prepublication review of manuscripts that are said to contain classified information. "I have faced this issue numerous times," Mr. Zaid said.

The new ruling may make it harder to continue that practice. The Legal Times blog has more here.

FOCUS ON FUSION CENTERS

The Department of Homeland Security has produced a new "Concept of Operations" to define how the Department will support and oversee the network of dozens of "fusion centers" that have been established around the country. The fusion centers are intended to promote a collaborative approach among federal, state and local authorities to combating terrorism and criminal activity.

Preparation of the new DHS Concept of Operations was required by the "9/11 Commission Recommendations Act of 2007." The document has not been formally released, but a copy was obtained by Secrecy News. See "Interaction with State and Local Fusion Centers: Concept of Operations," December 2008.

The Concept of Operations is programmatic rather than descriptive. It explains the intended operation of the fusion center system, not how (or whether) it works in practice-- a topic on which there are conflicting views.

"Despite their lofty claims, federal officials are misleading you if they have caused you to believe that fusion centers are actually 'fusing' any data, that interdepartmental systems in DOJ, DHS, or DOD are integrating anything but inconsequential records, or that nationwide networks like N-DEX and HSDN are systematically transporting data that is being used by state and local police departments," said former U.S. Attorney John McKay at a September 24, 2008 hearing. "If you accept these assertions at face value, you will be misinformed."

From another perspective, there is "not enough terrorism" to justify the creation and maintenance of the fusion center system. "There is, more often than not, insufficient purely 'terrorist' activity to support a multi-jurisdictional and multi-governmental level fusion center that exclusively processes terrorist activity," according to Sacramento police officer Milton Nenneman. ("Fusion Centers Face 'Insufficient' Terrorist Activity," Secrecy News, June 3, 2008).

Others take a more favorable view. "I would say that fusion centers have emerged as what may be the most significant change in the structural landscape of criminal intelligence in at least the past 25 years," said Russell M. Porter, director of the Iowa State fusion center.

Some of these issues were addressed in a recently published Senate hearing record. See "Focus on Fusion Centers: A Progress Report," hearing before the Senate Homeland Security and Governmental Affairs Committee, April 17, 2008.

The most widely shared official view seems to be that fusion centers offer significant advantages, especially to law enforcement agencies, but that they are still far from fulfilling their potential or optimizing their utility.

A similar view was expressed recently by the DHS Office of Inspector General in "DHS' Role in State and Local Fusion Centers is Evolving," December 10, 2008.

The ACLU discussed its view of "What's Wrong with Fusion Centers" in December 2007 (with a July 2008 update):

The Electronic Privacy Information Center provides related background, resources and critical commentary here:

VARIOUS ITEMS

The release of President Obama's first Presidential Policy Directive on "Organization of the National Security System" was reported by Karen DeYoung in the Washington Post and Josh Gerstein in Politico. Those stories and the new directive are linked here:

"Secretary of Defense Robert Gates lifted a blanket ban on news media coverage of the honor guard ceremonies that mark the return of military casualties from abroad," the National Security Archive noted. "The new policy will permit media coverage of the ceremonies, during which caskets draped with American flags are brought home from war, after consultation with the families of the fallen."

The unreleased Bush Administration documents that are most coveted by reporters, civil libertarians, and others are discussed in "Opening the Files on Bush's Secrets" by Jon Wiener in The Nation, March 16, 2009.

A new Army Field Manual on "Electronic Warfare in Operations" has been issued as part of "an overall effort by the Army to rebuild its internal Electronic Warfare capability." It also serves as a useful primer on the subject. The new Field Manual, FM 3-36, has been approved for unrestricted release.

A new trial date has been set in the "AIPAC Case," in which two former employees of the American Israel Public Affairs Committee are charged with improperly receiving and transmitting classified national defense information. The new date is May 27, 2009.

PRESIDENTIAL RECORDS, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

"Presidential Records: Issues for the 111th Congress," February 17, 2009:

"F-35 Lightning II Joint Strike Fighter (JSF) Program: Background, Status, and Issues," updated February 17, 2009:

"Strategic Arms Control After START: Issues and Options," updated February 12, 2009:

"Herring v. United States: Extension of the Good-Faith Exception to the Exclusionary Rule in Fourth Amendment Cases," February 2, 2009:

"U.S. Motor Vehicle Industry: Federal Financial Assistance and Restructuring," January 30, 2009:

"India-U.S. Relations," updated January 30, 2009:

"Compulsory DNA Collection: A Fourth Amendment Analysis," updated January 23, 2009:

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

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