SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 63
July 5, 2012

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

PROSECUTORS DISPUTE CLAIMS OF SELECTIVE ANTI-LEAK PROSECUTION

Last month, former CIA officer John Kiriakou, who is accused of unlawfully disclosing classified information to two reporters, said in pre-trial motions that he had been wrongly and unfairly singled out for prosecution, particularly since he had criticized the U.S. practice of waterboarding. ("Kiriakou Calls Leak Prosecution Selective, Vindictive," Secrecy News, June 22).

This week, prosecutors unsurprisingly rejected such claims while affirming that they intend to vigorously pursue their case against Mr. Kiriakou.

"The genesis of this prosecution has nothing to do with waterboarding, the national conversation about its wrongness or rightness, the defendant's opinions, or other public statements he may or may not have made," the July 2 government response states.

The new government filing presents a series of legal arguments against the defense motions for dismissal, explaining why prosecutors believe the Intelligence Identities Protection Act and the Espionage Act statutes under which Mr. Kiriakou is charged are sufficiently clear and specific to be constitutional. Beyond that, the new government response makes a couple of noteworthy points.

"The government does not intend to seek the testimony of either journalist to whom Kiriakou made the charged disclosures," prosecutors wrote. By refraining from subpoenaing the two unnamed reporters -- believed to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times -- prosecutors will steer clear of the controversies and difficulties facing the prosecution of former CIA officer Jeffrey Sterling, which is currently suspended while the government appeals the right to subpoena New York Times reporter James Risen, to whom Sterling allegedly provided classified information.

Prosecutors also suggest at one point that their obligation to prove at trial that Mr. Kiriakou had specific "reason to believe" his alleged disclosures would damage national security would be satisfied by "the non-disclosure agreements signed by Kiriakou," since those agreements include boilerplate language affirming that unauthorized disclosures could cause injury to the United States. This approach seems calculated to enable prosecutors to overcome the otherwise daunting hurdle of demonstrating the defendant's intent to harm the country. It is unclear if it would be found legally satisfactory by the court or persuasive to a jury.

In a critical account of the Kiriakou case to date, Dan Froomkin wrote that "The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn't be in trouble." See "Squelching Secrets: Why Are Obama's Prosecutors Pursuing John Kiriakou?", Huffington Post, July 4:

NSA TELLS FORMER ISOO DIRECTOR TO FILE A FOIA REQUEST

William Leonard, the former director of the Information Security Oversight Office, served as an expert witness for the defense in the misconceived prosecution of Thomas Drake, in which all felony charges against Mr. Drake were dismissed. (Mr. Drake pleaded guilty to a misdemeanor count.)

Now Mr. Leonard is seeking permission from the trial judge in the Drake case to publicly disclose and discuss certain National Security Agency documents cited in the charges against Mr. Drake that he says were classified in violation of national policy.

"I believe the Government's actions in the Drake case served to undermine the integrity of the classification system and as such, have placed information that genuinely requires protection in the interest of national security at increased risk," Mr. Leonard wrote in a May affidavit seeking permission from Judge Richard D. Bennett to reveal the now-declassified (but still undisclosed) documents. Attorneys for Mr. Drake asked the court to release Mr. Leonard from the protective order that restricts disclosure of the documents, so that he could publicly pursue his criticism of their original classification by NSA. See "Former Secrecy Czar Asks Court to Release NSA Document," Secrecy News, May 23, 2012.

But government attorneys said that Mr. Leonard has no standing to request relief from the protective order that was imposed on the NSA documents. They added that if he wants the documents to be publicly disclosed he should request them under the Freedom of Information Act.

"The problem with Leonard's claim is that it relies not on injury to him, but instead on a general desire to complain to the press and the public," the government said in a June 22 response to Mr. Leonard. Instead of court-ordered release, "the proper alternative... is for Leonard to file a Freedom of Information Act (FOIA) request with the National Security Agency (NSA), which is prepared to act expeditiously upon the request."

As it happens, I requested one of those documents under FOIA last year, and NSA has not acted on it expeditiously, or at all.

But the government said "The NSA has already prepared FOIA-approved versions of the documents at issue" which involve only minimal redactions.

"The government has no animus toward Leonard or his desire to express his opinion about the documents in question -- only an interest in appropriately protecting the sensitive nature of the material and to prevent a flood of similar claims by non-parties in other completed cases," the government response said.

See also "Complaint Seeks Punishment for Classification of Documents" by Scott Shane, New York Times, August 1, 2011:

AIR FORCE POLICY ON CONGRESSIONAL RELATIONS

The U.S. Air Force says its policy is to provide information to Congress as needed, but with preference given to members of the Armed Services Committees over other Committees, and to the Chairman and the Ranking Member of the Armed Services Committees over other members.

"Per OSD Policy, Congressional Member clearances are automatic once the Member is elected into their current position in the United States Senate or U.S. House of Representatives. Once a Member is elected as a seated member of Congress, the Member is automatically read into SCI [sensitive compartmented information] and any other classification needed," a newly revised Air Force Instruction explains.

"Members of Congress assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) are accessed to all DoD SAPs, except for a limited number of programs judged to be of extreme sensitivity, referred to as waived SAPs." SAPs stands for "special access programs" which are classified programs involving access controls that are more restrictive than for other classified information. "Waived SAPs" are a subset of SAPs that are briefed to only a select group of congressmen.

"Members of Congress not assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) will be granted access to DoD SAPs (non-waived SAPs only) with the concurrence of the DoD after consultation with the Chairman and Ranking Member of the defense committees."

"Air Force officials may not disclose classified information to the Congress for release to a congressional constituent."

Remarkably, Members of Congress who seek information for their own legislative purposes enjoy no special treatment from the Air Force, according to the Air Force.

"Requests from Members of Congress not seeking records on behalf of a Congressional Committee, Subcommittee, either House sitting as a whole, or made on behalf of their constituents shall be considered the same as any other requester." See "Air Force Relations With Congress," Air Force Instruction 90-401, 14 June 2012:

AN OVERVIEW OF THE AFFORDABLE CARE ACT, AND MORE FROM CRS

Updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

ACA: A Brief Overview of the Law, Implementation, and Legal Challenges, July 3, 2012:

Individual Mandate and Related Information Requirements under ACA, July 2, 2012:

Foreign Holdings of Federal Debt, July 3, 2012:

Mexico's Free Trade Agreements, July 3, 2012:

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, July 2, 2012:

COVERT ACTION IS PROMINENT IN CARTER ADMIN HISTORY

Covert action was a particularly prominent feature of U.S. foreign policy during the Jimmy Carter Administration, according to a report last month from the State Department Historical Advisory Committee. Covert action or other intelligence activities are said to figure in at least half of the volumes that will constitute the official record of the Carter Administration's foreign affairs.

The Historical Advisory Committee reported to the Secretary of State on June 13 regarding progress (or lack thereof) in the production of the official Foreign Relations of the United States (FRUS), which is the documentary record of U.S. foreign policy. Although there is a statutory requirement that FRUS be published no later than 30 years after the events it records, the series has never yet met that mandatory benchmark.

One of the obstacles to timely publication has been the need for a so-called High-Level Panel (HLP) composed of State, CIA and NSC officials to review documents related to covert action and other sensitive intelligence activities. Since the early 1990s, "more than 40 covert intelligence activities have now been acknowledged for publication in the [FRUS] series," the Committee report noted. However, any FRUS volume requiring HLP review "will spend at least one additional year, and often many more than one, in the declassification pipeline."

The Committee report said that the challenge to timely publication will only increase because "at least half of the Carter volumes will require resolution of HLP issues."

In other words, of the 28 projected FRUS volumes for the Carter Administration, at least half involve covert action or other sensitive intelligence activities.

This "seems high," a former State Department official told Secrecy News. "Nowhere near half of the Nixon-Ford volumes had HLP [covert action] issues and it's hard to believe there were more covert actions going on during the 4 years of Carter than during the 8 Nixon-Ford years."

The largest single covert action at that time would have been in Afghanistan, particularly following the Soviet intervention in 1979, said intelligence historian John Prados. He said there was also widespread intelligence involvement in "radio operations" around the globe, close observation of Cyprus, some focus on the PLO, some activity in South Yemen, and actions to counter the Cuban presence in various parts of Africa and Latin America.

Though some of this material is public knowledge, that will not necessarily expedite the task of publishing the FRUS series.

"The CIA... resolutely resists declassifying documents that entered the public domain through irregular channels," the State Department Historical Advisory Committee said.

"These documents are widely known to scholars, and thus CIA's policy presents a special challenge for the HO [State Department Historian's Office] to publish [FRUS] volumes that meet the [statutory] standard of a 'thorough, accurate, and reliable' documentary record of United States foreign policy," the Committee report said.

CIA's self-perception of its disclosure practices is rather different and altogether more flattering than the despairing view held by non-Agency historians, FOIA requesters, and others who attempt to elicit information from the Agency.

"CIA, unlike any other agency in the Intelligence Community, much less Federal Government, makes discretionary releases of historically significant documents available to the public, journalists, and academicians in a purposefully organized manner," the CIA stated in a March 2012 report from the CIA Chief FOIA Officer.

"CIA continues to inform record numbers of citizens, demonstrating our commitment to the Open Government Initiative and its three goals of transparency, participation, and collaboration," the CIA report said.

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

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