SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 45
May 12, 2011

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

IN DRAKE LEAK CASE, GOVT SEEKS TO BLOCK UNCLASSIFIED INFO

The government is seeking to limit the disclosure of unclassified information as well as classified information about the National Security Agency at the upcoming trial of former NSA official Thomas A. Drake, who is accused of unlawful retention of classified documents that were allegedly provided to a reporter.

Under the provisions of the Classified Information Procedures Act (CIPA), as expected, prosecutors have asked the court to protect certain classified information from disclosure at trial by proposing substitutions, subject to court approval.

But in an unprecedented legal maneuver, they said that some unclassified information concerning NSA should also be kept off the record. Defense attorneys told the court that the move was outrageous.

"One month from trial, and one year after the Indictment issued in this case, the government has asserted, for the first time, an evidentiary privilege under the National Security Agency Act of 1959 that it claims authorizes the Court to redact, or insert substitutions for, relevant unclassified evidence that will be introduced during the upcoming criminal trial," wrote public defenders James Wyda and Deborah L. Boardman on May 10. "There is no authority for this unprecedented assertion in the context of a criminal trial."

Prosecutors said their position was legitimate because "NSA possesses a statutory privilege that protects against the disclosure of information relating to its activities." The statute exempts the Agency from any required "disclosure of the organization or any function of the National Security Agency...." Prosecutors said CIPA permits them to invoke this privilege for unclassified information, along with any other privilege that might be germane.

The NSA Act exemption cited by the government is most commonly used in Freedom of Information Act cases to deny access to unclassified information. It has never been used to exclude information in a criminal case, the defense said. Even if it were permitted to be invoked in this case, it requires a detailed affidavit to support its use in each instance and no such affidavits have been produced.

"Neither CIPA nor the National Security Agency Act confers courts with the authority to require substitutions for unclassified, relevant evidence in a criminal case," the defense attorneys said. They asked the court to block the move or, failing that, to require the government to identify with specificity the reasons why disclosure of the unclassified information would harm national security.

The current pre-trial wrangling in the Drake case illustrates at least two things. First, the government is pursuing the matter aggressively at the tactical level; it is fighting to win, not just going through the motions. (The same, of course, may be said of the defense.) And second, this case -- and each of the other pending leak prosecutions -- may be of momentous importance not only to the defendant. Each proceeding has the potential to establish new precedents and new procedures that will perturb the current understanding of the law, and thereby make future leak prosecutions either easier or harder.

HOW TO CONDUCT CLASSIFIED DISCOVERY INTERVIEWS

In preparation for the trial of Jeffrey A. Sterling, a former CIA employee who is accused of unauthorized disclosure of classified information, prosecutors this week wrote to the defendant's attorney explaining how pre-trial interviews of potential witnesses in the case are to be conducted.

First of all, of course, "If you intend to discuss classified information during an interview, the potential witness must possess the requisite security clearances." But "You may not rely on the representations of the potential witness as to the status of that person's clearances," wrote U.S. Attorney Neil H. MacBride on May 9. "We will verify whether the potential witness has the requisite clearance."

You may not ask "the true identity of covert employees." You may not discuss "the background of covert employees." You may not ask questions "about intelligence operations other than that which has been disclosed to you in the discovery materials."

And so on. "With these restrictions, which we have reviewed with intelligence officials, we believe that you may conduct interviews with potential witnesses consistent with the Protective Order previously entered by the Court."

F-35 SELECTED ACQUISITION REPORT DISCLOSED

The latest annual report to Congress on the F-35 Joint Strike Fighter Program details the soaring costs and deferred production schedule associated with the program. The report, which has not been publicly released, outlines total program costs from last year as well as per-aircraft costs and planned annual spending rates.

It's "a useful primer on the Pentagon's most expensive weapons program," said one close observer of defense procurement.

A copy was obtained by Secrecy News. See the 2010 Selected Acquisition Report (SAR) for the F-35, April 2011:

PENTAGON PAPERS TO BE OFFICIALLY RELEASED

Forty years after they were famously leaked by Daniel Ellsberg in 1971, the Pentagon Papers will be officially released next month at the Richard Nixon Presidential Library.

The National Archives announced this week that it "has identified, inventoried, and prepared for public access the Vietnam Task Force study, United States-Vietnam Relations 1945-1967, informally known as 'the Pentagon Papers'." As a result, 3.7 cubic feet of previously restricted textual materials will be made officially available at the Nixon Library on June 13, the Archives said in a May 10 Federal Register notice.

While any release of historical records is welcome, the official "disclosure" of the Pentagon Papers is in fact a sign of disarray in the government secrecy system. The fact that portions of the half-century old Papers remained classified until this year is a reminder that classification today is often completely untethered from genuine national security concerns.

On March 28, 2011 the National Declassification Center announced "the great news that the Office of the Secretary of Defense (OSD) has declassified the information of interest to them" in the Papers, clearing the way for next month's public release.

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

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