SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 72
October 30, 2014

Secrecy News Blog: http://fas.org/blogs/secrecy/

DOD LEAKS NOW TERMED "SERIOUS SECURITY INCIDENTS"

Unauthorized disclosures of classified information, leaks to the news media, acts of espionage, and certain other information security offenses are now to be collectively designated as "serious security incidents," according to a Department of Defense directive that was published this week.

The new terminology was adopted in order to standardize procedures for preventing, identifying, investigating and reporting such violations when they occur. See "Management of Serious Security Incidents Involving Classified Information," DoD Directive 5210.50, October 27, 2014.

The new directive replaces a previous directive from 2005, which had simply been titled "Unauthorized Disclosure of Classified Information to the Public."

Not every episode of mishandling classified information qualifies as a "serious security incident." But that term applies whenever there is an unauthorized disclosure of classified information in the news media, or an act of espionage, or a willful disclosure of classified information to an unauthorized person that involves large amounts of classified information, or that reveals a systemic weakness in classification practices, among other circumstances. The threshold is determined by what is reportable to senior to DoD authorities (as specified in DoD Manual 5200.01, vol. 3, enclosure 6, at p. 88).

(Strictly speaking, the creation of an unauthorized DoD "special access program" would also appear to constitute a "serious security incident" requiring investigation, reporting and accountability. But that possibility is not mentioned in the new directive.)

"Serious security incident investigations and reporting will integrate security, counterintelligence, law enforcement, and other appropriate DoD interests to ensure that the causes of serious security incidents are identified and that all appropriate means are utilized to identify and mitigate damage to national security and avoid similar occurrences," the new directive states.

This week, Michael Isikoff of Yahoo News reported that the FBI had identified a new leaker ("Feds identify suspected 'second leaker' for Snowden reporters," October 27). The story also cited concerns among some intelligence officials that the Department of Justice may be reluctant to initiate new criminal prosecutions of suspected leakers due to criticism of past overzealousness.

It is hard to confirm from a distance that such reluctance on the part of Justice Department officials exists. But in fact, the government has always had alternatives to Espionage Act prosecutions of suspected leakers, including civil or administrative penalties and loss of security clearance.

The new DoD directive says that "DoD personnel responsible for serious security incidents may be held accountable, as appropriate, in a criminal proceeding, civil judicial action, disciplinary or adverse administrative action, or other administrative action authorized by federal law or regulations."

Likewise, a July 2013 Department of Justice review of policies concerning the news media said that "The Department will work with others in the Administration to explore ways in which the intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions."

STATE SECRETS CLAIM CHALLENGED IN DEFAMATION LAWSUIT

The U.S. Government overreached by intervening in a private defamation lawsuit to assert the state secrets privilege without providing a public explanation or even identifying which agency was asserting the privilege, the plaintiff in that lawsuit told a court yesterday.

That argument was bolstered by an amicus brief from civil liberties organizations concerning the proper use of the privilege and the alternatives to dismissal of the case.

The issue arose after Greek businessman Victor Restis filed the lawsuit last year against the private group United Against Nuclear Iran (UANI), alleging that it had falsely accused Restis of engaging in illicit commerce with Iran.

The U.S. Government, which was not a party to the case, unexpectedly asserted the state secrets privilege and moved for dismissal of the case in September, while refusing to disclose exactly why or by whom the privilege was being asserted.

"The Government's refusal to make [any] public disclosure at all -- even its basic theory of how the privilege may apply in this unprecedented setting -- suggests not that nothing can be disclosed, but that the Government is again overplaying a weak hand that likely would not survive public scrutiny," wrote Abbe D. Lowell, attorney for the plaintiff Mr. Restis.

"Assuming state secrets exist here -- which Plaintiffs will not concede in this improbable setting without additional information from the Government -- imposing the civil litigation equivalent of the death penalty [i.e. dismissal of the case] is not appropriate.... Reasonable alternatives do exist here that would finally permit this case to proceed to a fair adjudication of the merits," Mr. Lowell wrote.

He urged the court to "require additional public disclosure from the Government and Defendants, and provide Plaintiffs' counsel access to the Government's submissions. Only then can the adversarial process test the Government's state secrets privilege claim and, if applicable, determine the appropriate remedy."

A similar approach was endorsed by the ACLU and several other civil liberties organizations in an October 29 amicus brief.

"The government's refusal here to provide a public declaration supporting its assertion of the state secrets privilege is unprecedented in the annals of state secrets litigation," the civil liberties groups wrote.

"Even in cases involving extraordinarily sensitive subject matter such as governmental torture, surveillance, intelligence, and secret weapons systems, litigants have had some basis for understanding the governmental interest in the litigation. Here, by contrast, the parties lack even the broadest contours of government's alleged justification for the draconian result it seeks: denying a forum for a lawsuit between two private parties."

"However, if this case is so unique that no further public disclosure is possible, the Court should respond to the unprecedented circumstances the government has created by requiring the government to disclose to security-cleared counsel for the parties the following information: the scope of the privilege assertion; the basis for believing that evidence within the scope of the privilege assertion truly is secret; and the potential harm to national security that could result from public disclosure of the evidence."

In the end, the government's claim that state secrets are somehow implicated in this private defamation lawsuit raises several odd and unexplained issues, the plaintiff's attorney said.

"If the Government is asserting the theory that Defendants [United Against Nuclear Iran] cannot assert a proper defense without state secrets, then numerous questions need to be answered by the Defendants before the Court can rule on that assertion," suggested Mr. Lowell in his brief.

"Do they [the Defendants] maintain any classified information in their files (despite procedures that would seem to prevent that)? If Defendants or their counsel do have classified information, how did they obtain that information, and do Defendants and their counsel have adequate security clearances such that they can properly access that information? Why would this information be relevant to its allegations against Plaintiffs? Would this information constitute a valid defense against a defamation claim? What element of the defamation claim would this provide a valid defense against? Do Defendants plan to even assert the defense that raises the Government's concern? Will Defendants deny that they used whatever the Government is trying to protect in their campaign against Plaintiffs, such that the secret has not already been improperly used? Defendants should be required to answer these questions."

The defendants and the U.S. government are to file their respective briefs in opposition by November 12.

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

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