Media Orgs File Amicus Brief in Sterling Leak Case

Dozens of major news media organizations joined together to defend the notion of a reporter’s privilege to protect the identity of a confidential against compulsory disclosure.

The organizations filed an amicus curiae brief in support of New York Times reporter James Risen, who has been subpoenaed to testify in the case of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to Mr. Risen.  The case is currently on pre-trial appeal before the Fourth Circuit Court of Appeals.

“All amici are engaged in or support the dissemination of news and information to the public, at times through the use of confidential sources,” the amicus brief stated. “Amici are concerned that if this Court adopts the Government’s unprecedented position– that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials– their ability to report on matters of substantial public concern will be significantly impaired.”

The brief cited important news stories that were based in part on unauthorized disclosures of classified information.

“In many of these instances, although the source may arguably have violated a legal duty by providing such information to a journalist in the first instance, the subsequent reporting inevitably led to the discovery and prosecution of much more serious crimes. Amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources,” the brief stated.

The brief is an emphatic chorus of support for Mr. Risen, and it offers a clear statement that the public interest in a free press is at stake in this case.

One thing it does not do, however, is simplify the matter for the appeals court or help to devise some kind of resolution of the conflict between the parties.

Interestingly, Mr. Risen’s own brief was more accommodating.  It even suggested the possibility of “bad leaks” that were undeserving of privileged protection.  A case-by-case public interest analysis could be conducted to distinguish between good and bad leaks, the February 14 brief proposed.

Such an analysis “is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good.”

In this case a public interest analysis would vindicate Mr. Risen, his attorney wrote.

(More coverage from Politico, NYT.)

Characteristics of Members of Congress, and More from CRS

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

Representatives and Senators: Trends in Member Characteristics Since 1945, February 17, 2012

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, February 21, 2012

F-35 Joint Strike Fighter (JSF) Program: Background and Issues for Congress, February 16, 2012

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, February 17, 2012

Bahrain: Reform, Security, and U.S. Policy, February 21, 2012

Pentagon Defends Record on Secrecy Reform

The Department of Defense has done a better job of complying with changes in national security classification policy than it has gotten credit for, Pentagon officials told a Senate Committee.  The number of classification guides that are up to date has increased from 30% to over 70%, the officials said, and a new four-volume information security guide that has been under development since 2009 is in final coordination.

In response to a question for the record in a newly published hearing volume, the Pentagon officials — Mr. Thomas Ferguson and Ms. Teresa Takai — criticized an article in Secrecy News that was published a year ago.

Secrecy News had reported that (a) there was a presidentially-mandated deadline for agencies to update their regulations to implement the President’s executive order on classification;  (b) the Department of Defense missed the deadline;  and (c) DoD components such as U.S. Transportation Command were therefore not implementing the requirements of the executive order.  Each of these points was documented with citations to official sources.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011.)

But Mr. Ferguson and Ms. Takai said the Secrecy News article “is inaccurate on a number of counts, and Mr. Aftergood did not consult with the DoD office responsible for updating this issuance.”

The Pentagon officials did not dispute that there was a deadline, or that DoD had missed the deadline.

“We notified the Information Security Oversight Office (ISOO) that DoD would not be able to reissue the policy [i.e. the new implementing regulations] in the timeframe allowed;  however, ISOO and the National Security Staff denied the DoD request to extend the deadline established in the Executive Order (E.O.) 13526 and its implementing directive,” they wrote.

However, they said, “In October 2010, we sent formal notification to all DoD components reminding them of their obligation to comply with the E.O. as well as with the President’s [accompanying] memo.  We also initiated a DoD wide update of classification guidance.”

This leaves unexplained how it was that in February 2011, the U.S. Transportation Command (among others) said it had no record of a requirement to conduct a Fundamental Classification Guidance Review, as specified in the executive order, and no evidence of any compliance with it.

Regarding the Fundamental Classification Guidance Review, the DoD officials said that “ISOO and Mr. Aftergood may not understand the enormity of such an undertaking for DoD.  DoD has more classification guidance than any other agency or Department by several orders of magnitude.  The limited resources available for conducting such a review are already over-tasked by several new initiatives and activities resulting from the EO as well as other circumstances such as the WikiLeaks disclosure.”

Mr. Ferguson and Ms. Takai might have added that the President of the United States also “may not understand” the enormity of the task facing DoD, since it was he who personally set the deadline that DoD failed to meet.  Alternatively, perhaps DoD may not recognize the urgency of restoring integrity and public confidence to classification policy.

“Regardless,” they wrote, “the Department has made solid strides forward in implementing the national policy contrary to Mr. Aftergood’s assertions.”

On balance, what appears to be true is both that DoD got a late start in complying with the executive order, and also that it made progress once it got underway.

It was not until May 2011 that Under Secretary of Defense (Intelligence) Michael G. Vickers wrote to DoD agency heads and department officials instructing them to “begin this effort [the Fundamental Classification Guidance Review] immediately…. We cannot afford to expend resources on protecting information that no longer meets the criteria for classification.”

By the time of its first interim report on the Fundamental Review in July 2011, DoD said it had cancelled 82 classification guides.  (“Fundamental Review Yields Reduction in Scope of Secrecy,” Secrecy News, October 3, 2011.)

Portions of the 2009 Obama executive order 13526 were reflected in a June 13, 2011 update of DoD Instruction 5200.01 on information security.  However, the full DoD information security regulation implementing the executive order has still not been published.

The remarks of Mr. Ferguson and Ms. Takai were included among other interesting responses to questions for the record in a newly published hearing volume from a March 10, 2011 hearing of the Senate Homeland Security and Governmental Affairs Committee on “Information Sharing in the Era of WikiLeaks: Balancing Security and Cooperation.”

Post-WikiLeaks Network Monitoring Takes Shape

The heightened surveillance of classified government information networks that was a predictable response to the unauthorized disclosures published by WikiLeaks is becoming more clearly discernible.

“USSTRATCOM/USCYBERCOM is monitoring use of the SIPRNet and now has a mechanism for reporting certain anomalous behaviors for appropriate remediation,” said Thomas A. Ferguson, Deputy Under Secretary of Defense (Intelligence) and Teresa Takai, DoD Chief Information Officer.

“We have established the first formal security oversight and assessment program to determine levels of compliance” with rules of access to classified networks,” they said in response to questions for the record from a March 10, 2011 hearing of the Senate Homeland Security and Governmental Affairs Committee on “Information Sharing in the Era of WikiLeaks.”

“Simply understanding that we have this monitoring capability creates deterrence of willful mischief,” they added.

“We will improve our ability to individually track users through enforcement of strong user authentication on classified networks, ensure responsible controls on removable media, and provide strong website authentication for classified fabrics — all to provide greater control over access to classified information,” wrote Corin R. Stone of the Office of the Director of National Intelligence in her own answers to questions for the record from the same hearing.

“The FBI and CIA have robust insider threat programs in place for tracking the specific information accessed by users of their systems and detecting, to varying degrees, suspicious user behavior (e.g., excessive file accesses or data downloads) and alerting security personnel to take action.  Several agencies (e.g., NGA, NSA, NRO) are maturing their audit and insider threat capabilities, while others still lag behind,” Ms. Stone wrote.

“The WikiLeaks disclosures highlighted the need to ‘raise the bar’ in terms of these capabilities,” she wrote.

In testimony before the Senate Armed Services Committee last week, Defense Intelligence Agency director Lt. Gen. Ronald L. Burgess said that “The potential for trusted US Government and contractor insiders using their authorized access to personnel, facilities, information, equipment, networks or information systems in order to cause great harm is becoming an increasingly serious threat to national security.”

CIA and Special Ops are “Deconflicted at All Levels”

“I will tell you the relationship between CIA and Special Operations Forces is as good as I have ever seen it,” said Adm. William H. McRaven, Commander of Special Operations Command, in congressional testimony last year. “Both under [CIA] Director Panetta, and now, of course, under Director Petraeus, I think we are going to see that relationship continue to strengthen and blossom.”

The conduct of DoD special operations, including coordination between DoD clandestine operations and CIA covert operations, was the subject of an informative hearing held by the House Armed Services Committee in September.  The record of that hearing has just been published.

“USSOCOM [U.S. Special Operations Command] and the CIA currently coordinate, share, exchange liaison officers and operate side by side in the conduct of DOD overt and clandestine operations and CIA’s covert operations, said Michael D. Lumpkin, acting assistant secretary of defense.

“Our activities are mutually supportive based on each organization’s strengths and weaknesses and overall capabilities. Whichever organization has primary authority to conduct the operation leads; whichever organization has the superior planning and expertise plans it; both organizations share information about intelligence, plans, and ongoing operations fully and completely. Whether one or both organizations participate in the execution depends on the scope of the plan and the effect that needs to be achieved. Currently all USSOCOM and CIA operations are coordinated and deconflicted at all levels.”

“USSOCOM reports all of its clandestine activities quarterly through DOD to Congress for appropriate oversight,” Mr. Lumpkin said.

See “The Future of U.S. Special Operations Forces: Ten Years After 9/11 and Twenty-Five Years After Goldwater-Nichols,” hearing before a subcommittee of the House Armed Services Committee, September 22, 2011.

And see, relatedly, “Budget Requests from the U.S. Central Command and U.S. Special Operations Command,” hearing before the House Armed Services Committee, March 3, 2011.

Nonstrategic Nuclear Weapons, and More from CRS

New and updated reports from the Congressional Research Service that Congress has declined to make readily available to the public include the following.

Extraterritorial Application of American Criminal Law, February 15, 2012

Civilian Extraterritorial Jurisdiction Act: Federal Contractor Criminal Liability Overseas, February 15, 2012

Nonstrategic Nuclear Weapons, February 14, 2012

The U.S. Export Control System and the President’s Reform Initiative, February 16, 2012

NATO Common Funds Burdensharing: Background and Current Issues, February 15, 2012

The Federal Budget: Issues for FY2013 and Beyond, February 17, 2012

Reducing the Budget Deficit: Policy Issues, February 15, 2012

Burma’s Political Prisoners and U.S. Sanctions, February 13, 2012

Previewing the Next Farm Bill, February 15, 2012

FAS Roundup- February 20, 2012

FAS Roundup: February 20, 2012


Pentagon discloses military intelligence budget request, potential cuts in U.S. nuclear forces by Obama administration, question of reporter privilege and much more. 

From the Blogs

  • Pentagon Basic Research Said to Need “More Transparency”: The Department of Defense basic research program has many strengths as well as some serious weaknesses, according to a new report from the Defense Science Board (DSB) obtained by Secrecy News. But, DoD needs to open up and to improve its information management practices.
  • Nuclear Studies and Republican Disarmers: A recent report that the Obama administration is considering deep cuts in U.S. nuclear forces has Congressional Republicans up in arms. Right-wing institutions have criticized the administration for preparing reckless unilateral cuts that jeopardize U.S. security. Hans Kristensen writes that as it turns out, Republican presidents have been the biggest nuclear reducers in the post-Cold War era.
  • Reporter’s Privilege at Issue in Sterling Leak Case: The question of whether a reporter is entitled to protect confidential sources has emerged as a central issue in the pending pre-trial appeal in prosecution of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to New York Times reporter James Risen.

Nuclear Studies and Republican Disarmers

Despite an outcry from congressional republicans and conservatives against the Obama administration’s plans to reduce nuclear weapons, Republican presidents have been the big disarmers in the post-Cold War era.                                        Click graph for larger version

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By Hans M. Kristensen

A recent report by the Associated Press that the administration is considering deep cuts in U.S. nuclear forces has Congressional Republicans and frequent critics of nuclear reductions up in arms.

The AP report quoted “a former government official and a congressional staffer” saying the administration is studying options for the next round of arms control talk with Russia that envision reducing the number of deployed strategic warheads to 1,000-1,100, 700-800, and 300-400.

Congressional Republicans and right-wing institutions have criticized the administration for preparing reckless unilateral cuts that jeopardize U.S. security.

As it turns out, Republican presidents have been the biggest nuclear reducers in the post-Cold War era. Republican presidents seem to have a thing for 50 percent nuclear reductions. Continue reading

Reporter’s Privilege at Issue in Sterling Leak Case

The question of whether a reporter is entitled to protect confidential sources has emerged as a central issue in the pending pre-trial appeal in prosecution of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to New York Times reporter James Risen.

“There is no ‘reporter’s privilege’ applicable to criminal prosecutions brought in good faith,” prosecutors told the appeals court last month.  “The First Amendment creates no ‘reporter’s privilege’ that would shield Risen from his obligation to testify at Sterling’s criminal trial and identify his source.”  (“Testimony of Reporter Sought in Sterling Leak Case,” Secrecy News, January 17).

That’s not true, countered Mr. Risen’s attorneys in a lengthy response filed yesterday, and the court should not rule otherwise.

“This Court should not depart from well-established precedent by being the first court of appeals ever to deny the existence of a reporter’s privilege with respect to confidential source information in the criminal trial context…. Confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed.”

Mr. Risen’s attorneys proposed that the Court embrace a balancing test that recognizes both the benefits and risks of leaks.

“We respectfully submit that leak cases should also include a weighing of the competing interests as they manifest themselves in the case at hand — that is, by ‘weigh[ing] the public interest in compelling disclosure [of a source], measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value’.”

“Put simply, incorporating this public interest analysis is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good.”

“Applying this approach to the facts of this case, it is clear that the newsworthiness of the information contained in Chapter 9 of [Mr. Risen’s book] State of War outweighs any alleged harm that was caused by its publication,” Mr. Risen’s attorneys wrote.

A response to the government’s appeal was also filed yesterday by Mr. Sterling, but it has not yet been publicly released.  See Politico for related coverage.

The case has been tentatively scheduled for oral argument during the May 15-18 session of the Fourth Circuit Court of Appeals.

Pentagon Basic Research Said to Need “More Transparency”

The Department of Defense basic research program has many strengths as well as some serious weaknesses, according to a new report (large pdf) from the Defense Science Board (DSB), but it needs to open up and to improve its information management practices.

“As is true for most programs in the DoD,… less bureaucracy and more transparency would be welcome improvements,” the DSB study said.

Current DoD information practices are not even responsive to internal agency needs, let alone requests from outsiders, the DSB found.

“A significant handicap for conducting the [DSB] study was the difficulty of getting data on the DOD basic research program.  What should have been easily retrievable data required huge time-consuming, labor-intensive efforts to collect and assemble due to the lack of a modern management information system that would enable answering questions posed by DOD leadership.”

“It is difficult to have management without management information,” the DSB report said.  See Report of the DSB Task Force on Basic Research, January 2012.