SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 5
January 23, 2012

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

COURT SAYS REVIEW OF SECURITY CLEARANCE DISPUTE IS "PROHIBITED"

A government agency's decision to revoke an employee's security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA). Mr. Hegab alleged that his security clearance had been revoked by NGA "based solely on [his] wife's religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization." ("Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says," Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.

Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn't matter even if the plaintiff's allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

"A determination of whether Hegab's security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA's decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent," Judge Cacheris wrote.

"Egan" here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.

A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in "Judicial Interpretations of Egan," November 13, 2009.

AFGHANISTAN CASUALTIES, AND MORE FROM CRS

New or updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

"Afghanistan Casualties: Military Forces and Civilians," January 18, 2012:

"FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues," January 5, 2012:

"Spectrum Policy in the Age of Broadband: Issues for Congress," January 5, 2012:

"The Federal Bureau of Investigation and Terrorism Investigations," December 28, 2011:

"Economic Downturns and Crime," December 19, 2011:

DOD SUPPORT TO FOREIGN DISASTER RELIEF

The Department of Defense has prepared a guide for military personnel who are engaged in foreign disaster relief operations, an endeavor which arises with some frequency.

"The U.S. Government (USG) responds to approximately 70-80 natural disasters across the globe each year. In approximately 10-15 percent of these disaster responses, the Department of Defense (DoD) lends support to the overall USG effort."

"DoD disaster assistance can range from a single aircraft delivering relief supplies, to a fullscale deployment of a brigade-size or larger task force. Though the overall percentage of disasters requiring DoD support is relatively small, these disasters tend to be crises of the largest magnitude and/or the greatest complexity."

The new guide "offers an overarching guide and reference for military responders in disaster relief operations." See "Department of Defense Support to Foreign Disaster Relief," GTA-90-01-030, 13 July 2011 (large pdf):

INTELLIGENCE SUPPORT TO MILITARY OPERATIONS

The Joint Chiefs of Staff have produced updated doctrine on intelligence support to military operations. The new doctrine reflects changes in intelligence organizations, roles and missions.

Among other things, the new publication introduces the term "biometric-enabled intelligence" or BEI. "BEI is derived from the collection, processing, and exploitation of biometric signatures; the contextual data associated with those signatures; and other available information that answers a commander's or other decision maker's information needs concerning persons, networks, or populations of interest."

See Joint Publication 2-01, "Joint and National Intelligence Support to Military Operations," 05 January 2012:

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

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