from the FAS Project on Government Secrecy
Volume 2009, Issue No. 88
November 4, 2009

Secrecy News Blog:


The government's proposed use of the state secrets privilege in a pending lawsuit was reviewed under the new state secrets policy that was established in September to limit use of the privilege, Attorney General Eric Holder announced on October 30. But upon review the government decided that it was necessary and appropriate to assert the privilege anyway. Furthermore, the government did not merely seek to withhold particular items of evidence from disclosure in the case, Shubert v. USA, but sought to terminate the proceeding altogether.

"As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so," Attorney General Holder said. "We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power," he said.

With one exception, the Attorney General cited the various steps that had been prescribed under the new policy to ensure the proper use of the privilege, including formation of a review committee, facilitation of court review, and personal approval by the attorney general.

But one aspect of the new policy that he did not address was the question of referral of the alleged misconduct to an agency inspector general for investigation. The policy specifies that such a referral is supposed to occur whenever "invocation of the privilege would preclude adjudication of particular claims," as it is poised to do in this case, and when the "case raises credible allegations of government wrongdoing." The plaintiffs in the case allege that their communications were subject to unlawful "dragnet" collection by the National Security Agency. Somewhat artfully, the government denies that any such collection occurred "under the Terrorist Surveillance Program," implicitly allowing for the possibility that it may have occurred under some other framework.

Another pending state secrets case brought by former DEA agent Richard Horn appears to have reached a settlement, with the government agreeing to pay the plaintiff $3 million, reported Josh Gerstein in Politico.

The Collaboration on Government Secrecy at American University's Washington College of Law will hold a conference on "The State of the State Secrets Privilege" on November 18.


Attempts to predict the occurrence or the likelihood of extreme acts of terrorist violence on the scale of 9/11 should be discouraged because the available data are too sparse to permit the reliable modeling of such "rare events," according to a new report to the Pentagon from the JASON defense advisory panel.

In a nutshell, "it is simply not possible to validate (evaluate) predictive models of rare events that have not occurred, and unvalidated models cannot be relied upon."

On the other hand, the JASONs said, it may be possible and useful to assume that rare events are correlated with more frequent, observable events which can be reliably modeled. If one assumes that "rare events events occur on a continuum with more frequent events," then the latter can be used to help predict the former.

In this way, the JASONs calculated that the probability of another 9/11-scale event in the world could be about 7% in the next ten years. But for reasons they went on to enumerate, the underlying assumption of continuity between rare and frequent events is not demonstrably correct.

"Much of the work on [anticipating] rare terrorist events seems to take for granted that 'the truth is out there' and we can discover it in a sufficiently timely fashion with the right mixture of motivational assessment, social network analysis, capability measures, etc." This may not be true, they indicated.

The JASONs offered suggestions for improving the modeling process, and they stressed the need for "good, large datasets of [terrorist] events and incident data" that currently do not exist or are not widely available. It is "surprisingly hard to obtain primary datasets" even on "straightforward" questions of terrorist event frequency and magnitude.

They cautioned that the complexity of the problem and the presumed urgency of the threat have "led some to advocate the suspension of normal standards of scientific hypothesis testing, in order to press [predictive] models quickly into operational service."

But "while appreciating the urgency, JASON believes such advice to be misguided.... Experience in the development of many other scientific fields shows the importance of adhering to rigorous scientific standards, so that small successes are tested, communicated, critically examined, reproduced, and built upon."

"Although patient husbandry of a long-term research program may fall short of addressing the immediate operational needs, JASON believes it is the best way forward for success in the long term." A copy of the new JASON report was obtained by Secrecy News. See "Rare Events," October 2009:


A new book delves into "the secret history of federal drug law enforcement" and the role of the Drug Enforcement Administration. See "The Strength of the Pack: The Personalities, Politics and Espionage Intrigues that Shaped the DEA" by Douglas Valentine, TrineDay, 2009.

Former Congressional Research Service scholar Morton Rosenberg authored a detailed account of the principles and practices of congressional oversight entitled "When Congress Comes Calling." It was published by the Constitution Project in July and is available in full-text online:


During the course of World War I, tens of thousands of photographs were withheld from publication by the U.S. military. These included images that might have revealed troop movements or military capabilities, pictures that were liable to be used in enemy propaganda, or those that could adversely affect military or public morale.

The development of military controls on publication of photographs during WWI was described in a 1926 U.S. Army report that is illustrated with dozens of images that had been withheld, with a description of the reasons their publication was not permitted.

See "The Military Censorship of Pictures: Photographs that came under the ban during the World War - and why" by Lt. Col. Kendall Banning, U.S. Army Signal Reserve Corps, 1926 (large pdf) (courtesy of the U.S. Army Combined Arms Center):


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

See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:

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