Gov’t Opposes Testimony of ISOO’s Leonard in AIPAC Case

Prosecutors in the case of two former AIPAC lobbyists who are charged with unlawful transmission of classified information last week asked a court to prevent the former director of the Information Security Oversight Office, J. William Leonard, from testifying for the defendants.

Mr. Leonard, who was the government’s senior classification policy authority for the past five years until his recent retirement, should not be allowed to assist the defense, prosecutors said. There are legal and ethical prohibitions against his testimony, according to the prosecution, particularly since he once had a discussion with prosecutors about the case.

“Mr. Leonard is subject to a permanent restriction on appearing as an expert witness on behalf of any other party in this matter except the United States,” prosecutors argued in their March 31 motion (pdf).

The prosecution move highlights the awkward fact that several of the government’s own most distinguished classification experts are siding with the defense in this case.

Another former ISOO director, Steven Garfinkel, has also been named as a potential expert witness for the defense.

Perhaps with that prospect in mind, the government motion stated that “The statutory restrictions enumerated herein may likewise apply to other expert witnesses the defense intends to present.”

The government motion was first reported by the Jewish Telegraphic Agency in “Gov’t: Bar Classification Czar,” April 4.

The OLC Torture Memo as a Failure of the Classification System

The Justice Department Office of Legal Counsel memo on interrogation of enemy combatants that was declassified this week “exemplifies the political abuse of classification authority,” Secrecy News suggested yesterday.

J. William Leonard, the nation’s top classification oversight official from 2002-2007, concurred.

“The disappointment I feel with respect to the abuse of the classification system in this instance is profound,” said Mr. Leonard, who recently retired as director of the Information Security Oversight Office, which reports to the President on classification and declassification policy.

“The document in question (pdf) is purely a legal analysis,” he said, and it contains “nothing which would justify classification.”

Beyond that crucial fact, the binding technical requirements of classification were ignored.

Thus, he explained: There were no portion markings, identifying which paragraphs were classified at what level. The original classifier was not identified on the cover page by name or position. The duration of classification was not given. A concise basis for classification was not specified. Yet all of these are explicitly required by the President’s executive order on classification.

“It is not even apparent that [John] Yoo [who authored the memo] had original classification authority,” Mr. Leonard said.

“All too often, government officials simply assert classification. To enjoy the legal safeguards of the classification system, you need to do more than that. Those basic, elemental steps were not followed in this instance.”

“Also, for the Department of Defense to declassify a Department of Justice document,” as in this case, “is highly irregular,” Mr. Leonard said.

(The DoD declassifier mistakenly cited “Executive Order 1958” on the cover page of the declassified memorandum. The correct citation is “Executive Order 12958, as amended.”)

Violations of classification policy pale in comparison to the policy deviations authorized by the Justice Department memo, which was ultimately rescinded. Nevertheless, such classification violations are significant because they enabled the Administration to pursue its interrogation policies without independent scrutiny or accountability.

“To learn that such a document is classified has the same effect for me as waking up one morning and learning that after all these years there is a ‘secret’ Article IV to the Constitution that the American people did not even know about,” said Mr. Leonard.

“There is no information contained in this document which gives an advantage to the enemy,” he said. “The only possible rationale for making it secret was to keep it from the American people.”

Reforming the State Secrets Privilege: Two Views

Attorney General Michael B. Mukasey this week expressed strong Bush Administration opposition (pdf) to pending legislation that would regulate the use of the state secrets privilege in civil litigation.

The proposed “State Secrets Protection Act” (S.2533), the Attorney General wrote in a detailed seven-page letter, “would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.”

In short, “We strongly oppose this legislation.”

See the Attorney General’s March 31, 2008 letter to Sen. Patrick J. Leahy, chair of the Senate Judiciary Committee.

At the request of Senator Edward M. Kennedy, an original sponsor of the State Secrets Protection Act, Attorney General Mukasey’s criticisms of the bill were reviewed and rebutted by Louis Fisher, the constitutional law expert at the Law Library of Congress.

“According to Attorney General Mukasey, Presidents are entitled to unilaterally define the scope of their powers under Article II and no other branch has any authority to impose limitations,” Dr. Fisher wrote (pdf).

“The Constitution has been interpreted in that manner at times by some Presidents, but never successfully. Such a reading would eliminate the checks and balances that are fundamental to the U.S. Constitution.”

See this April 2, 2008 memorandum prepared by Louis Fisher.

DNI Issues New Information Sharing Strategy

A new “Information Sharing Strategy” (pdf) from the Office of the Director of National Intelligence warns that traditional security practices that restrict disclosure of information have become counterproductive.

“The Intelligence Community’s ‘need to know’ culture, a necessity during the Cold War, is now a handicap that threatens our ability to uncover, respond, and protect against terrorism and other asymmetric threats,” the document declares.

The new Strategy defines information sharing goals and as well as near-term and long-term implementation objectives. Goals include uniform government-wide information policies, improved connectivity, and increased inter-agency collaboration.

Notably absent from the document is any role for the public in information sharing. The DNI Strategy has no place for the notion of an engaged citizenry that has intelligence information needs of its own.

A copy of the new Strategy, which has not yet been released, was obtained by Secrecy News. See “U.S. Intelligence Community Information Sharing Strategy,” February 22, 2008.

In December 2007, DNI McConnell issued Intelligence Community Policy Memorandum (ICPM) 2007-500-3 on “Intelligence Information Sharing” (pdf). A copy of the document, which has not been publicly released, is here.

Two related IC Policy Memoranda, which have been officially released, are these:

“Preparing Intelligence to Meet the Intelligence Community’s ‘Responsibility to Provide'” (pdf), ICPM 2007-200-2, December 11, 2007.

“Unevaluated Domestic Threat Tearline Reports” (pdf), ICPM 007-500-1, November 19, 2007.

2003 OLC Memo on Interrogation Declassified

A 2003 memo from the Justice Department Office of Legal Counsel that appears to authorize abusive interrogation of suspected unlawful combatants outside the United States was declassified this week.

The memo (pdf) concludes that criminal statutes that would preclude torture and other forms of physical abuse “do not apply to properly-authorized interrogations of enemy combatants.” The memo, authored by John Yoo, was subsequently rescinded, amidst widespread criticism.

From a secrecy policy point of view, the document itself exemplifies the political abuse of classification authority. Though it was classified at the Secret level, nothing in the document could possibly pose a threat to national security, particularly since it is presented as an interpretation of law rather than an operational plan. Instead, it seems self-evident that the legal memorandum was classified not to protect national security but to evade unwanted public controversy.

What is arguably worse is that for years there was no oversight mechanism, in Congress or elsewhere, that was capable of identifying and correcting this abuse of secrecy authority. (Had the ACLU not challenged the withholding of the document in court, it would undoubtedly remain inaccessible.) Consequently, one must assume similar abuses of classification are prevalent.

The 81-page memorandum, dated March 14, 2003, is entitled “Military Interrogation of Alien Unlawful Combatants Held Outside the United States.”

Open Society Institute Seeks Transparency Program Director

The Open Society Institute, a philanthropic foundation founded by George Soros that works to promote democratic governance, is seeking to hire a program director for its work on transparency in the U.S. (Secrecy News has received funding from OSI.)

The OSI transparency program “will use a combination of grantmaking strategies and programmatic initiatives to ensure transparency and effective oversight of government and to protect the integrity of government institutions.”

A description of the Program Director position and the desired skills and qualifications may be found here (pdf).

The North Korean Economy, and More from CRS

Noteworthy new reports from the Congressional Research Service which have not been made readily available to the public include the following (all pdf).

“The REAL ID Act of 2005: Legal, Regulatory, and Implementation Issues,” April 1, 2008.

“The Social Security Number: Legal Developments Affecting Its Collection, Disclosure, and Confidentiality,” updated February 21, 2008.

“Congressional Authority To Limit U.S. Military Operations in Iraq,” updated February 27, 2008.

“Taiwan’s 2008 Presidential Election,” April 2, 2008.

“The North Korean Economy: Leverage and Policy Analysis,” updated March 4, 2008.

A New Intelligence Oversight Task for GAO

For the first time in six years, the Government Accountability Office has been asked by a congressional intelligence committee to perform an intelligence oversight-related function.

On March 11, Rep. Silvestre Reyes (D-TX), the chairman of the House Intelligence Committee, and Rep. Anna Eshoo (D-CA), an intelligence subcommittee chairwoman, called upon the GAO to review security clearance processes in the intelligence community and to examine the DNI’s pilot project on security clearance reform.

The new assignment potentially represents a breakthrough in the longstanding stalemate over GAO’s role in intelligence oversight. Opposition to GAO oversight in the intelligence community combined with resistance from the congressional committee leadership have effectively sidelined GAO since the intelligence committees submitted their last intelligence-related request to GAO in 2002.

Proponents of an increased intelligence oversight role for GAO (including FAS [pdf] and GAO itself [pdf]) have argued that not only does GAO possess relevant expertise, but that by sharing the oversight burden GAO can free the intelligence committees to focus on more specialized oversight functions.

The new GAO assignment was described in a March 12 news release from Rep. Eshoo.

It was also noted by me in a letter to the editor of the Washington Post on “Extending the GAO’s Reach,” March 31.

The potential role of the GAO in intelligence oversight was addressed in a February 29 hearing of the Senate Homeland Security and Governmental Affairs Committee chaired by Senator Daniel Akaka.

Avoiding a Nuclear Arms Race in the Middle East

The likely responses of Saudi Arabia, Egypt and Turkey to Iranian acquisition of a nuclear weapon were considered in a new staff report (pdf) from the Senate Foreign Relations Committee.

“How are these three countries responding today to the Iranian nuclear program? How would Riyadh, Cairo, and Ankara respond if Tehran were to cross the nuclear threshold and acquire nuclear weapons? Would they pursue nuclear weapons of their own? What factors would influence their decisions? What can the U.S. do now and over the coming years to discourage these countries from pursuing a nuclear weapon of their own?”

“Based on 5 months of research and interviews with hundreds of officials and scholars in the United States and seven Middle Eastern countries, this report attempts to answer these questions.”

See “Chain Reaction: Avoiding a Nuclear Arms Race in the Middle East,” Senate Foreign Relations Committee print, February 2008.