HHS, DHS and CDC Webcast on Swine Flu

Today at 1pm EST HHS secretary Kathleen Sebelius, DHS Secretary Janet Napolitano and acting Director of the CDC Richard Besser will be webcast answering questions about Swine Flu from the American people.  The webcast will be available at www.hhs.gov and questions can be emailed to [email protected].

The World Health Oraganization has now raised the Pandemic Alert Level to Phase 5 meaning that they believe there is a “strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short.” There currently have been 109 confirmed cases of Swine Flu in the US and one death. Continually updated information on the situation and statistics as well as fact sheets and interim guidance documents can be found on the CDC Swine Flu page at www.cdc.gov/swineflu.

Appeals Court Curbs Use of State Secrets Privilege

The government’s use of the state secrets doctrine to shut down litigation on certain sensitive national security topics could be sharply curtailed by a new federal appeals court ruling (pdf).

The ruling came in a lawsuit brought by the ACLU against a company called Jeppesen DataPlan and filed on behalf of several plaintiffs who said they were unlawfully seized and transported with Jeppesen’s flight support to foreign countries where they were allegedly interrogated under torture in a CIA “extraordinary rendition” program.

The government sought to have the whole case thrown out because the subject matter, it said, is a “state secret.”  The lower court agreed, and dismissed the case last year.

But the appeals court said the state secrets privilege can only apply to “evidence” to be introduced in court, not to mere “information.”  The ruling sent the case back to the lower court with the instruction that “the government must assert the privilege with respect to secret evidence (not classified information)” and the lower court must then determine whether the privilege applies.  Only if the privilege is granted and if the privileged evidence is indispensable to the case could the case then be dismissed.

This would rule out the approach followed by the Bush and Obama Administrations in which they invoked the state secrets privilege to effectively block litigation on entire topical areas — shielding whole categories of information such as extraordinary rendition and warrantless surveillance — not just to prevent the introduction of specific evidence that they claimed was privileged.

In another crucial distinction, the court said that the fact that certain information is “classified” does not necessarily mean that it is “secret” for purposes of the privilege.

“A rule that categorically equated ‘classified’ matters with ‘secret’ matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process,” the court said.  (“Abuse of the Nation’s information classification system is not unheard of,” the court noted drily.)

Instead of relying solely on government classification claims, “courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the [state secrets] privilege.”

Such an independent judicial evaluation of official secrecy claims is precisely what critics of recent use of the state secrets privilege such as Louis Fisher and others have been asking for.  (The court cited a review of books by Fisher and Barry Siegel about the 1953 Reynolds case and the state secrets privilege that was published earlier this year in the New York Review of Books.)  Judicial review is also the centerpiece of the proposed “State Secrets Protection Act” that is pending in Congress.

The government has not yet indicated how it will respond to the ruling.

Official: “We’re Lazy About Classification”

There is practically a universal consensus that the national security classification system has become dysfunctional and counterproductive. (Just what to do about it remains up in the air–more on that shortly).

That consensus was articulated again earlier this month in a speech by Joan Dempsey, formerly a senior Pentagon intelligence official, a Deputy Director of Central Intelligence, and executive director of the President’s Foreign Intelligence Advisory Board, and now a vice president at Booz Allen and Hamilton.

“Ninety-five percent of what we do shouldn’t be classified at all, or it should be a much lower level of classification,” Ms. Dempsey said.  “We’re lazy about classification.  We call things secret that are not secret.  It hampers our ability to be effective as a community.  It costs the country billions of unnecessary dollars, and it doesn’t provide us one additional capability.  We’re our own worst enemy in that regard,” she said.

Ms. Dempsey spoke on April 14 at the University of Texas at Austin. Her talk, ironically enough, was entitled “Back to Black: An Argument for Removing U.S. Intelligence Activities from Public Scrutiny,” and amounted to a call for increased secrecy of intelligence operations.  But her defense of intelligence secrecy, she said, was contingent on robust congressional oversight and was not intended to shield misconduct or to perpetuate overclassification.  A webcast of the talk is available here (the discussion of classification begins at about 28:45).

Army Intel Journal Back Online

The U.S. Army last year blocked online public access to the Military Intelligence Professional Bulletin (MIPB), an Army intelligence journal, and moved the publication archive to the password-protected “Intelligence Knowledge Network.”  (“Army Blocks Public Access to Intel Journal,” Secrecy News, March 31, 2009).

But in response to a Freedom of Information Act request from the Federation of American Scientists, the Army promptly handed over a softcopy of the MIPB archive, as it was obliged to do.  (One exception: A Fall 2007 issue on Biometrics, marked FOUO, has not yet been approved for public release.)

Back issues of the MIPB through the end of 2008 are now available here.

For the last several years, a growing volume of government information, especially unclassified defense-related information, has been removed from official websites and transferred behind password-protected portals.  There is no complete record of what has been removed, and to reverse the process therefore requires a time-consuming, piecemeal effort just to identify and secure the most valuable items.

Briefing on US-Russian Nuclear Forces

Vast inventories of nuclear weapons remain after the Cold War arms race ended.

By Hans M. Kristensen

Russia’s nuclear forces are expected to drop well below 500 offensive strategic delivery vehicles within the next five years, less than one-third of what’s permitted by the 1991 START treaty. Unless the next U.S. Nuclear Posture Review significantly reduces the number of land-based intercontinental ballistic missiles, that single leg of the U.S. Triad of nuclear forces alone could soon include more delivery vehicles than the entire Russian strategic arsenal of land- and sea-based ballistic missiles and long-range bombers. With this in mind, Russia is MIRVing its ballistic missile to keep some level of parity with the United States.

This and more from a briefing I gave this morning at the Arms Control Association meeting Next Steps in U.S.-Russian Nuclear Arms Reductions.  I was in good company with Ambassador Linton Brooks, the former U.S. chief negotiator on the START treaty, who spoke about the key issues and challenges the START follow-on negotiators will face, and Greg Thielmann, formerly senior professional staffer of the Senate Select Committee on Intelligence, who discussed how the a new agreement might be verified through START-style verification tools.

Download: Briefing on US-Russian Nuclear Forces

OSC Views New Cuban Leadership

The political leadership of Cuba, which has undergone significant turnover in the past year, was profiled in a new publication this month by the DNI Open Source Center (OSC).

“Raul Castro has overhauled the leadership of top government bodies, especially those dealing with the economy, since he formally succeeded his brother Fidel as president of the Councils of State and Ministers on 24 February 2008,” the OSC observed. “Since then, almost all of the Council of Ministers vice presidents have been replaced, and more than half of all current ministers have been appointed.”

See “Cuban Leadership Overview” (pdf), Open Source Center, April 16, 2009.  A handsome poster featuring photographs of dozens of senior Cuban officials was also compiled by the Open Source Center.  See “Cuban Leadership Chart” (pdf), April 16, 2009.

Like most Open Source Center products, these items have not been approved for public release.  Copies were obtained by Secrecy News.

Specter Bills Seek to Rein In Executive Power

Senator Arlen Specter (R-PA) last week reintroduced three bills that he said were needed to limit presidential power and to restore the proper constitutional balance among the three branches of government.

The first bill (S.875) would instruct courts not to rely on a presidential signing statement when interpreting the meaning of any statute. (Similar legislation was introduced in previous sessions of Congress, but was not passed.)

President Bush used signing statements “in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced,” said Sen. Specter on April 23. “As outrageous as these signing statements are,… it is even more outrageous that Congress has done nothing to protect its constitutional powers,” he said.

The second bill (S.876) would substitute the United States as the defendant in place of telecommunications companies in pending lawsuits alleging unlawful surveillance. (Sen. Specter also introduced such a bill in 2008.)

“It is not too late to provide for judicial review of controversial post-9/11 intelligence surveillance activities,” Sen. Specter said. “The cases before Judge Vaughn Walker [alleging unlawful surveillance] are still pending and, even if he were to dismiss them under the statutory defenses dubbed ‘retroactive immunity’, Congress can and should permit the cases to be refiled against the Government, standing in the shoes of the carriers.”

“The legislation also establishes a limited waiver of sovereign immunity… to prevent the Government from asserting immunity in the event it is substituted for the current defendants,” Sen. Specter explained. (As for the likelihood that the Government would assert the “state secrets privilege” to abort such litigation, that is addressed in another pending bill.)

The third bill (S.877), which is new, would require the Supreme Court to review certain cases concerning the constitutionality of intelligence surveillance, statutory immunity for telecommunications providers, and other communications intelligence activities, and would eliminate the Court’s discretion as to whether or not to grant “certiorari.” The bill was necessitated, he said, by the Supreme Court’s refusal to review an appeals court decision that overturned a 2006 ruling by Judge Anna Diggs Taylor which found the Terrorist Surveillance Program to be unconstitutional.

Sen. Specter discussed his approach to these matters in “The Need to Roll Back Presidential Power Grabs,” New York Review of Books, May 14, 2009.

Information Needs in a Democracy: Request for Comment

While official secrecy is a serious impediment to democratic vitality, the continuing decline of news gathering, reporting and editorial capacity could be a potential catastrophe.  It is still unclear whether new and nascent forms of information sharing can provide a satisfactory substitute.

The Knight Commission on the Information Needs of Communities in a Democracy is soliciting public input on a series of questions about information access and use, revolving around the most basic question:  “Do you have the information you need to accomplish your personal goals and to be an effective citizen?”  To participate in the survey, go here.

Piracy, Organized Crime, and More from CRS

At the direction of Congress, the Congressional Research Service does not make its products directly available to the public.  Recent CRS reports obtained by Secrecy News include the following (all pdf).

“Legal Analysis of Religious Exemptions for Photo Identification Requirements,” April 13, 2009.

“Federal Advisory Committees: An Overview,” April 16, 2009.

“Piracy Off the Horn of Africa,” April 21, 2009.

“FY2009 Spring Supplemental Appropriations for Overseas Contingency Operations,” April 17, 2009.

“Organized Crime in the United States: Trends and Issues for Congress,” April 16, 2009.

“Disconnected Youth: A Look at 16- to 24-Year Olds Who Are Not Working or In School,” April 22, 2009.

Concern Over Pakistan’s Nuclear Weapons

Pakistan’s nuclear weapons are “widely dispersed” says Secretary of State Hillary Clinton. Does that include the large weapons storage complex at Sargodha? Click for image.

By Hans M. Kristensen

Secretary of State Hillary Clinton has expressed concern over the safety of Pakistan’s nuclear weapons in the light of increasing violence in the country. The weapons “are widely dispersed in the country – they are not at a central location,” she said in what is perhaps the first U.S. public indication of its knowledge about how Pakistan stores its nuclear weapons.

We’re pleased that both Washington Times and the Carnegie Endowment use our estimates for how many nuclear weapons Pakistan and other countries have. For additional information about Pakistan’s nuclear forces, see:

* Preparation of Shaheen-2 ballistic missile launchers.
* Nuclear Notebook: Pakistan’s Nuclear Forces, 2007 (most recent update).