SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 25
March 29, 2010

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

WYDEN: PATRIOT ACT SECRECY IS "INTOLERABLE"

"I believe that there is a discrepancy between what most Americans believe is legal and what the government is actually doing under the Patriot Act," said Sen. Ron Wyden (D-OR) in a statement last week on the Senate floor regarding reform of the Patriot Act.

"In my view, any discrepancy of this sort is intolerable and untenable, and can only be fixed by greater transparency and openness."

"Most members of the public do not expect to have detailed information about how intelligence collection is actually conducted," Sen. Wyden said, "but they do expect to understand the boundaries of what the law does and does not allow, so that they can ratify or reject the decisions that public officials make on their behalf."

Under present circumstances, Sen. Wyden said, Americans do not have an accurate perception of what the Patriot Act permits and how it is being used and, he said on Thursday, this is unacceptable.

"There is key information that is relevant to the debate on the Patriot Act that is currently classified. Over the past two and a half years, I have pressed the executive branch to declassify this information in a responsible way, so that members of Congress and the public can have an informed debate about what the law should actually be."

In partial response, he said, the Attorney General and the Director of National Intelligence have produced a classified account of the use of the Patriot Act that any member of Congress can now read in the intelligence committees' secure offices.

"But by itself this step does not go nearly far enough," he said. "It is just as essential for the public to have this information as well."

Among other things, Sen. Wyden noted that the so-called "business records" provision of the Patriot Act (Section 215) actually applies to collection of "any tangible thing," which means that "it covers things like blood or tissue samples as well."

A U.S. BIOMETRICS AGENCY

As of last week, there is now a U.S. Government national security agency called the Biometrics Identity Management Agency (BIMA). It supersedes a Biometrics Task Force that was established in 2000.

Though nominally a component of the Army, the biometrics agency has Defense Department-wide responsibilities.

"The Biometrics Identity Management Agency leads Department of Defense activities to prioritize, integrate, and synchronize biometrics technologies and capabilities and to manage the Department of Defense’s authoritative biometrics database to support the National Security Strategy," according to a March 23 Order issued by Army Secretary John M. McHugh that redesignated the previous Task Force as the BIMA.

Biometrics is generally defined as "a measurable biological (anatomical and physiological) [or] behavioral characteristic that can be used for automated recognition."

"Biometric data [are] normally unclassified," according to a 2008 DoD directive. "However, elements of the contextual data, information associated with biometric collection, and/or associated intelligence analysis may be classified."

"Biometrics-enabled Intelligence [refers to] intelligence information associated with and or derived from biometrics data that matches a specific person or unknown identity to a place, activity, device, component, or weapon that supports terrorist / insurgent network and related pattern analysis, facilitates high value individual targeting, reveals movement patterns, and confirms claimed identity."

"Biometrics is an important enabler that shall be fully integrated into the conduct of DoD activities to support the full range of military operations," the 2008 directive stated.

"Every day thousands of [biometric] records are collected and sent to the Department of Defense (DOD) Automated Biometric Identification System (ABIS) to store and compare against existing records," a 2009 DoD report said. "The technology is improving such that a submission from theater [e.g., in Afghanistan] can be searched in the DOD ABIS and a response sent back to theater in less than two minutes."

"Realtime positive identification of persons of interest enables Coalition forces to target, track, and prosecute known or potential adversaries," the DoD report said.

WHITE HOUSE REPORT ON STRATEGIC COMMUNICATION

A new White House report to Congress defines "strategic communication" as "the synchronization of our words and deeds as well as deliberate efforts to communicate and engage with intended audiences."

"This understanding of strategic communication is driven by a recognition that what we do is often more important than what we say because actions have communicative value and send messages," the report stated. "Every action that the United States Government takes sends a message."

Unfortunately, the report does not begin to acknowledge any instances in which U.S. government actions are inconsistent with U.S. government words, thus necessitating their "synchronization," and so it is not very illuminating.

A copy of the report, transmitted to Congress on March 16 and reported March 25 by Inside the Pentagon, is available here:

The report refers in passing to a Presidential Study Directive on Development, a document that has not yet surfaced in the public domain.

IS THERE A WAR ON WIKILEAKS?

Wikileaks.org, which publishes confidential documents online, says that it is being harassed by U.S. military and intelligence agencies because of its disclosures of restricted information, including the forthcoming release of a classified U.S. military video of an air strike in Afghanistan that produced civilian casualties. But those claims are disputed and can hardly be taken at face value.

"That WikiLeaks is being targeted by the U.S. Government for surveillance and disruption is beyond doubt," declared Glenn Greenwald in Salon.com.

In support of this conclusion he cited the detention of a minor in Iceland last week who was supposedly questioned about an incriminating Wikileaks video. But there is no independent corroboration of this incident. And Wikileaks' account of what transpired, though recounted by Salon as fact, is disputed by Iceland's police:

"Chief of police in Reykjavik, Fridrik Smari Bjorgvinsson, said the only link he has been able to establish between the allegations and his force was the arrest of a 17 year-old in Kopavogur on Monday for breaking into a business premises. Bjorgvinsson emphasised that Icelandic police have not been working with the American secret services on the matter, as Wikileaks spokesmen allege."

Perhaps the Reykjavik police chief is also part of a global campaign to destroy Wikileaks. Or perhaps the whole story is one of mystification and error.

LAW REVIEW PAPERS ON THE STATE SECRETS PRIVILEGE

Although the state secrets privilege is not much in the news at the moment, it continues to percolate in the law review literature.

The privilege, narrowly conceived, is a way for the government to block the introduction in court of specific pieces of evidence that it deems too sensitive for disclosure. But in recent years, the invocation of the privilege has led to the termination and dismissal of entire cases.

Last September, Attorney General Holder established new internal procedures to "ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

But "the new policy cannot serve as an adequate accountability mechanism," according to a new law review paper, particularly since "nothing in the policy compels administration cooperation with courts once the state secrets privilege is asserted." See "State Secrets and Executive Accountability" by Christina E. Wells, Constitutional Commentary, forthcoming:

"Between 2001 and 2009 the government asserted state secrets in more than 100 cases," a much higher count than previously reported, "while in scores more litigants appealed to the doctrine in anticipation of government intervention." See "The Shadow of State Secrets" by Laura Donohue, University of Pennsylvania Law Review, forthcoming:

Another pending law review paper of interest, though not specifically on the state secrets privilege, is entitled "A New Era of Openness? Disclosing Intelligence to Congress Under Obama" by Kathleen Clark, Constitutional Commentary, forthcoming:

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

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