SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 101
October 31, 2005

WHITE HOUSE NAMES NEW PFIAB MEMBERS

President Bush has announced the names of a dozen individuals whom he will appoint to the President's Foreign Intelligence Advisory Board (PFIAB), the White House intelligence oversight body.

Stephen Friedman, an investment banker and a previous PFIAB member, will serve as the next PFIAB chairman. Other appointees include former congressman Lee Hamilton and former National Reconnaissance Office director Martin Faga. See the full list in this October 27 White House announcement:

PFIAB "provides advice to the President concerning the quality and adequacy of intelligence collection, of analysis and estimates, of counterintelligence, and of other intelligence activities. The PFIAB, through its Intelligence Oversight Board, also advises the President on the legality of foreign intelligence activities," according to a description on the White House web site.

As an intelligence oversight mechanism, PFIAB is inherently flimsy. It provides no public accountability to speak of.

Yet given the diminished state of congressional intelligence oversight today, PFIAB has arguably become more important than ever.

Recently, for example, the Electronic Privacy Information Center (EPIC) was able to uncover a series of investigative violations committed by the FBI because of a provision requiring agencies to report such violations to the PFIAB's Intelligence Oversight Board. There is no requirement that the violations be reported to Congress.

"It's because of section 2.4 [of executive order 12863, requiring reports to the PFIAB IOB] that we got the recent documents of alleged abuse by the FBI under the Patriot Act," said Marc Rotenberg of EPIC. See the documents here (3.1 MB PDF file):


FITZGERALD ON LEAKS AND THE ESPIONAGE ACT

The section of the Espionage Act that prohibits the unauthorized disclosure of national defense information is "a difficult statute to interpret," said Special Prosecutor Patrick Fitzgerald. "It's... a statute you ought to carefully apply."

Mr. Fitzgerald, who announced the indictment of Vice Presidential chief of staff I. Lewis "Scooter" Libby on perjury and other charges last week, acknowledged widespread concerns about using the Espionage Act to punish leaks to the media of classified information, such as the identity of CIA officer Valerie Plame.

"I think there are people out there who would argue that you would never use that [i.e. the Espionage Act] to prosecute the transmission of classified information because they think that would convert that statute into what is in England, the Official Secrets Act."

"I don't buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you pick the right case to charge that statute," Mr. Fitzgerald said at his October 28 press briefing on the Libby indictment.

Although the Espionage Act has not been invoked in Fitzgerald's ongoing investigation, using it to punish leaks remains a live issue in the prosecution of two former officials of the American Israel Public Affairs Committee for allegedly mishandling classified information. (See Secrecy News, 10/19/05).

The potential use of the Espionage Act to punish leakers was addressed lately by Morton Halperin, myself and Larry Johnson in "Complexity of Prosecuting Leakers Stirs Concern" by Larry Abramson, NPR Morning Edition, October 28:


SECRET DHS TRANSPORTATION STRATEGY DRAWS FIRE

In an increasingly familiar complaint, the Department of Homeland Security was criticized for classifying its National Strategy for Transportation Security, a move which rendered it inaccessible to state and local governments, emergency responders and the public.

"What use is it if the people who have to adapt to it don't know anything about its existence or what it says?" asked former Sen. Slade Gorton (R-WA) in testimony before a subcommittee of the Senate Judiciary Committee last week.

"Are there elements in an overall transportation plan that we shouldn't broadcast to the world?" Sen. Gorton continued. "I'm sure there are."

"But the existence of the plan and what people who are in the private sector need to know about the plan in order to carry out its recommendations-- of course they shouldn't be classified."

"The difficulty here in the United States... is the ease with which information is classified; the temptation once it's classified not to share it, often even with other agencies and the like; and the extreme difficulty of getting declassified. This is just a particular example," Sen. Gorton said.

The controversy was reported in "U.S. in dark on security plan" by Lisa Friedman, Los Angeles Daily News, October 27:


SASC REPORT ON THE 2006 INTEL AUTHORIZATION ACT

The pending intelligence authorization act for fiscal year 2006 was reviewed and modified by the Senate Armed Service Committee in a new report on the bill.

Most of the Committee's changes are classified, but the unclassified report describes several actions that generally reflect Defense Department interests.

The amended bill would specify that the authority of the Director of National Intelligence over human intelligence does not extend to tactical intelligence; would limit the authority of the inspector general of the intelligence community with respect to matters within the jurisdiction of the Pentagon inspector general; and would advance a controversial freedom of information exemption for operational files of the Defense Intelligence Agency. It would also shorten the duration of a pilot program permitting intelligence agency access to official Privacy Act records from four years to two years.

See the Senate Armed Services Committee report on the 2006 intelligence authorization act, Sen. Rept. 109-173, October 27, 2005, here:


MISCELLANEOUS RESOURCES

A variety of noteworthy publications, some widely reported and some not, have been issued in recent days, including these:

The National Intelligence Strategy of the United States, which incongruously proposes "the growth of democracy" as an intelligence objective, was issued by the Director of National Intelligence on October 25:

The indictment of I. Lewis "Scooter" Libby on perjury, obstruction of justice and other charges was announced in an October 28 news release:

A copy of the indictment itself is here:

U.S. policy towards Africa during the Nixon Administration is the subject of a new volume of declassified government records published in the State Department's official Foreign Relations of the United States series. The full text, published only online, is here:

Foreign language capability and regional expertise shall "be considered critical competencies essential to the DoD mission," a new Department of Defense Directive states. See DoD Directive 5160.41E, "Defense Language Program," October 21, 2005:

Government access to criminal history records to determine an individual's suitability for participation in highly classified special access programs is addressed in DoD Instruction 1304.23, "Acquisition and Use of Criminal History Record Information for Military Recruiting Purposes," October 7, 2005:

The pilots and support personnel who engaged in paramilitary operations as part of the CIA "proprietary" known as "Civil Air Transport" and "Air America" from 1946 through 1976 are not considered to have been "active duty" military personnel for purposes of benefits provided by the Department of Veterans Affairs, the Secretary of the Air Force has determined. See this October 18 Federal Register notice:

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

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