SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 84
September 6, 2011

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

LEAK PROSECUTORS PRESS AGAIN FOR SUBPOENA OF RISEN

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is suspected of leaking classified information to author and New York Times reporter James Risen, last week renewed their request for a subpoena to compel Risen to testify at Sterling's upcoming trial.

A July 29 court order, issued by Judge Leonie M. Brinkema, had sharply limited the scope of Risen's testimony, essentially requiring him only to authenticate his authorship of a book containing classified information concerning Iran's nuclear program, and to attest to the accuracy of its contents.

Prosecutors said they need much more than that from Mr. Risen, and they filed a Motion for Reconsideration on August 24.

Then on September 2 they filed a Supplement arguing that further developments "have strengthened the government's argument that it has a compelling interest in Mr. Risen's eyewitness testimony because it is necessary or critical to the case, and because there are no alternative means from which the government can obtain the same evidence."

First, they said that in the absence of Mr. Risen's definitive testimony the defense planned to allege that multiple other individuals were or might have been the source of the leak. "As a result, the government will be forced to prove a negative, over and over again, that each of these individuals was not the leaker."

In particular, prosecutors said, "the defendant is using the Court's decision to shield Mr. Risen from testifying as a sword to falsely attack the character and reputation of congressional staffers, most prominently Ms. Vicki Divoll," a former Senate Intelligence Committee staffer.

In an August 2 motion, the Sterling defense had alleged that Ms. Divoll's Senate employment had been terminated because she breached Committee confidentiality rules. "This is a false charge -- and the defendant knows that it is false," prosecutors said. They cited a statement from an Intelligence Committee legal representative who indicated that "Ms. Divoll's personnel file did not reflect a charge of disclosing classified information to anyone."

Prosecutors also said that another argument by the Sterling defense about Mr. Risen's writing style -- a claim that no inferences about his sources can be drawn even when particular statements are attributed to named individuals -- supports their request for a subpoena.

Specifically, the defense has provided notice that University of Maryland Professor Mark Feldstein may be called to testify that Risen's book "is written in the third-person omniscient, a narrative style in which the reader is presented the story by a narrator with an overarching perspective.... It is not uncommon using this style for an author to ascribe thoughts or motivations to particular 'characters', whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed." This style is exemplified by books authored by Bob Woodward, the defense notice said.

This kind of argument "further underscores why the government has a compelling interest in requiring Mr. Risen to testify," prosecutors wrote.

In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were "a mistake on his part." As a result, prosecutors said, Mr. Risen himself is "the only source for the information the government seeks to present to the jury."

In other developments in the case, Judge Leonie Brinkema issued an August 30 order with several rulings favorable to the prosecution. She denied a defense motion for discovery of classified intelligence estimates on Iran's nuclear program. She rejected defense arguments that the Classified Information Procedures Act does not permit the government to introduce substitutions for classified evidence. And she granted a prosecution request that certain intelligence assets be permitted to testify behind a screen so that their identities are not made public.

The previously undisclosed subject matter of a leak of classified information by former FBI linguist Shamai Leibowitz concerned transcripts of FBI wiretaps of Israeli efforts to monitor and influence U.S. policy, Scott Shane revealed in the New York Times today. See "Leak Offers Look at Efforts by U.S. to Spy on Israel":

Mr. Leibowitz pleaded guilty to the unauthorized disclosures, which were provided to blogger Richard Silverstein. Leibowitz was sentenced to jail in May 2010.

2011 SECRECY REPORT SEES SIGNS OF OPENNESS

The latest annual report on secrecy from the pro-transparency coalition Openthegovernment.org finds some positive signs of increasing openness amidst a continuing expansion of secret government.

"We are not as yet at the level of 'unprecedented transparency' the Obama Administration promises, but we are beginning to see signs that at least some of the Administration’s openness efforts are paying off," said Patrice McDermott, coalition director and co-author of the annual report with Amy Bennett and Abby Paulson.

For example, the report noted that Freedom of Information Act (FOIA) backlogs government-wide were reduced by 10% in Fiscal Year 2010 compared to FY 2009.

The new annual report conveniently gathers all or most of the available quantitative measures of secrecy. By doing so, however, it also highlights the inadequacy of such data.

Some of the measures are ambiguous, as in the observation that the number of "signing statements" issued by President Obama to challenge the legitimacy of newly enacted legislation is lower than that of other recent presidents. The report praises this reduction. But signing statements that publicly declare Administration non-compliance with legislation can easily be understood as signs of "openness," even if they are unwelcome, since they explicitly signal executive branch attitudes and actions.

Many other measures of secrecy, including the volume of classification activity, convey almost no meaningful information. They are vaguely descriptive of the constant churning of the classification system, but they fail to provide any basis for evaluation. Is there too much secrecy? too little? just the right amount? Anyone may have an opinion, but the quantitative data on secrecy gathered by the government provide no basis for reaching a firm judgment.

The data simply lack any kind of Figure of Merit that would allow one to distinguish legitimate national security secrecy from its spurious kin. The failure to generate and provide meaningful metrics of secrecy is a serious impediment not only to public accountability, but also to proper management of the classification system.

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

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