SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 92
September 12, 2012

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

COURT LIFTS GAG ORDER ON FORMER SECRECY CZAR

A federal judge this week granted permission to J. William Leonard, the former director of the Information Security Oversight Office, to discuss three documents that were at issue in the trial of former National Security Agency official Thomas Drake.

Mr. Leonard, an expert witness for the Drake defense, had sought permission to publicly challenge the legitimacy of the classification of one of the documents cited in the indictment against Mr. Drake, which was ultimately dismissed.

The government had opposed the motion to lift the non-disclosure obligations in the protective order that bound Mr. Leonard. Government attorneys argued that Mr. Leonard had no standing to make such a request, which was filed by Mr. Drake's public defenders James Wyda and Deborah L. Boardman. The government also said the request should be denied in order "to prevent a flood of similar claims by non-parties in other completed cases." Instead, prosecutors suggested, Mr. Leonard could file a Freedom of Information Act request for the records in question.

But Judge Richard D. Bennett said that "the government's arguments in this case are inapposite." Even if the documents were made available to Mr. Leonard under FOIA, "he would not have been permitted to discuss them as he would remain bound by this Court's Protective Order."

Judge Bennett therefore formally lifted the Protective Order and granted Mr. Leonard permission to publicly discuss his concerns.

The documents themselves, and the complaint that Mr. Leonard submitted to the Information Security Oversight Office, were released by the National Security Agency under FOIA in July. ("Defense, Critique of NSA Classification Action Released," Secrecy News, July 30.)

The complaint itself is still pending, and is awaiting a formal response from the Department of Justice, said the current ISOO director, John P. Fitzpatrick.

The challenge presented by Mr. Leonard extends well beyond the Drake case or the secrecy practices of the National Security Agency. Essentially, the question posed by the former ISOO director's complaint is whether there is any threshold beyond which classification of information is so completely unjustified as to trigger third-party intervention to correct the problem. As of today, such corrective mechanisms are weak or nonexistent.

KIM LEAK PROSECUTION HITS A BUMP IN THE ROAD

Prosecutors in the pending leak case of former State Department contractor Stephen Kim said they had discovered that the classified information Mr. Kim is accused of disclosing to a reporter without authorization had been circulated within the government more broadly than they had realized.

That discovery requires further investigation and disclosure to the defense, prosecutors said in a recent status report to the court.

"In short, the undersigned prosecutors have learned that the intelligence report identified in the Indictment had been used for purposes of drafting a separate intelligence product, which product was never finalized prior to the unauthorized disclosure at issue," the status report said. "Some of the drafting occurred within the time period deemed relevant by the Parties."

"The undersigned prosecutors are investigating this drafting process to determine its scope and what discoverable material may arise from it. The undersigned prosecutors have advised that their review of this additional information could take two additional months to complete before any materials related thereto are produced to the defense. While counsel for the defendant have not been informed of the content of this new information, counsel reasonably expect that it could have a material impact on their understanding of the government's case, and likely will prompt additional discovery requests."

LIMITED DATA MAKE SECRECY HARDER TO MEASURE, MANAGE

A new annual report on government secrecy discusses the quantitative and qualitative obscurity of government secrecy policy which makes secrecy hard to evaluate and to control.

The report was published by OpenTheGovernment.org, a coalition of some 80 organizations concerned with government transparency.

"Measuring what it is we actually know about the openness of the American government is not a straightforward endeavor," the report says. "Information available to the public provides inconsistent and partial indicators about whether our government is becoming more, or less, open. In some areas, the information needed to know what the Executive Branch is doing and to hold it accountable to the public is not available at all."

Even where quantitative data are available, as in the case of the number of classification decisions published annually by the Information Security Oversight Office, their qualitative significance is unclear, the report said.

"Having information about the quantity of secrets kept by the federal government tells us nothing about their quality."

The OpenTheGovernment.org report assembled the quantitative indicators of government secrecy and disclosure that could be obtained, and also discussed several categories that should be available but are not.

"Good information is essential for the public to know what interests are influencing government policies, and more," said Patrice McDermott, executive director of OpenTheGovernment.org. "Partial and mis- information, however, erodes accountability and prevents the public from having an informed debate about critical national issues."

DRONES IN THE NATIONAL AIRSPACE SYSTEM, AND MORE FROM CRS

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

Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System, September 10, 2012:

Global Access to Clean Drinking Water and Sanitation: U.S. and International Programs, September 10, 2012:

Automobile and Truck Fuel Economy (CAFE) and Greenhouse Gas Standards, September 11, 2012:

Overview of the Federal Procurement Process and Resources, September 11, 2012:

Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues, September 10, 2012:

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program, September 10, 2012:

Arizona v. United States: A Limited Role for States in Immigration Enforcement, September 10, 2012:

Authority of State and Local Police to Enforce Federal Immigration Law, September 10, 2012:

Intelligence, Surveillance, and Reconnaissance (ISR) Acquisition: Issues for Congress, September 10, 2012: http://www.fas.org/sgp/crs/intel/R41284.pdf

The latter report on ISR acquisition was co-authored by veteran CRS specialist Richard F. Grimmett. On Monday, Sen. Richard Lugar paid tribute on the Senate floor to Mr. Grimmett, who is retiring at the end of the month.

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

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