SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 85
September 8, 2011

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

EUROPEAN COUNCIL OFFERS REBUKE TO U.S. SECRECY POLICY

A draft resolution prepared for the inter-parliamentary Council of Europe bluntly criticized the "cult of secrecy" in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

"In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation," the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe. It is to be debated by the full Assembly next month. See "Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations," provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA. The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

"The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions," the draft resolution said.

The document pointed approvingly to Canada's response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime. The government of Canada apologized for the episode and provided financial compensation to Arar. But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the "state secrets" privilege.

"As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms," the draft resolution said. The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

"We are confronted with a real cult of secrecy," the document said. "It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency."

The resolution praised the role of WikiLeaks in publishing "diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees." But it also stated that "It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel" -- a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several "basic principles for judicial and parliamentary scrutiny of the secret services" in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, "Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets."

SCIENTIST STEWART NOZETTE PLEADS GUILTY TO ATTEMPTED ESPIONAGE

Stewart Nozette, a space scientist who was deeply involved in many of the nation's most highly classified technology programs, pleaded guilty to attempted espionage for providing classified information to an undercover FBI agent posing as an Israeli intelligence officer.

According to a "factual proffer" presented by the government in court yesterday, "The defendant [Nozette] initially claimed to be wary of providing any classified information to the UCE [Under Cover Employee of the FBI]." But with continued encouragement, "the defendant's purported concerns were soon assuaged," the proffer document stated, and he proceeded to exchange classified information for cash.

Nozette, who was privy to dozens of special access programs and compartmented intelligence programs, was also an innovative technologist with an impressive record of achievement. One of the many unsettling features of his story is that in the past, when I knew him slightly, he was not motivated primarily by a desire for money nor was he oblivious to security. How and why he changed has not been explained. See, relatedly, "Nozette and Nuclear Rocketry," Secrecy News, October 22, 2009.

HOUSE TURNS TO FY2012 INTELLIGENCE AUTHORIZATION ACT

The House Intelligence Committee issued its report on the FY2012 intelligence authorization act on September 2, and the bill is expected to go to the House floor on September 9.

The White House issued a veto threat against the bill yesterday based on its opposition to two provisions: a requirement to produce State Department cables relating to Guantanamo detainees, and a requirement that the Director of the National Security Agency be confirmed by the Senate.

Somewhat oddly, those provisions, which originated in the Senate version of the bill, did not appear in the version reported by the House Intelligence Committee. Rather, they were included in a "pre-conferenced" version of the bill that was intended to expedite handling of the bill by incorporating some Senate provisions and which was provided to the House Rules Committee. But Intelligence Committee chair Rep. Mike Rogers told the Rules Committee yesterday that he would offer a manager's amendment on the House floor to remove the provisions that are opposed by the White House, mitigating or eliminating the veto threat.

The most significant features of the pending intelligence bill are contained in a classified annex that is not publicly available. Among its less significant features, the unclassified bill would require the CIA to prepare a classified official report on the killing of Osama bin Laden (as first reported by Tony Capaccio of Bloomberg News).

"For years to come, Americans will look back at this event as a defining point in the history of the United States," the House Committee believes, referring to the bin Laden killing. "It is vitally important that the United States memorialize all the events that led to the raid so that future generations will have an official record of the events that transpired before, during, and as a result of the operation," the Committee report said.

The House bill would also specify that the Department of Homeland Security's Office of Intelligence and Analysis, rather than the Department of Homeland Security as a whole, is a member of the U.S. Intelligence Community.

Coincidentally, in an investigation published this week the Center for Investigative Reporting found that the DHS Office of Intelligence and Analysis "has fallen far short of its mission and done little to improve the accuracy and quality of the nation's intelligence data." See "Homeland security office creates 'intelligence spam,' insiders claim" by Andrew Becker and G.W. Schulz, America's War Within, September 5.

The House Intelligence Committee report is silent regarding the Office's performance.

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

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