SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 45
April 7, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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HOUSE INTEL COMMITTEE URGES NEW ACTION AGAINST LEAKS

Existing laws prohibiting unauthorized disclosures of classified information have not been effective, the House Intelligence Committee stated in a new report on the 2007 intelligence authorization act published today.

"Additional and more creative steps to deter unauthorized disclosures are warranted," the report said.

Towards that end, the Committee asked the Director of National Intelligence to study the feasibility of revoking the pensions of those who commit unauthorized disclosures.

Furthermore, "the Committee has initiated a review of certain specific potential unauthorized disclosures of classified information at the request of the Speaker of the House."

"That review primarily is concentrating on an investigation of four cases to develop a better understanding of the related facts and circumstances. The investigation is in turn expected to better enable the Committee to understand how and why unauthorized disclosures occur, and how the protection of classified information is perceived in practice."

"By definition, no individual--whether a journalist, government official, or intelligence community employee--can or should singlehandedly presume to determine what information 'deserves' to be withheld from disclosure in order to protect national security, especially without full knowledge of the surrounding context," the Committee stated.

In one startling passage, the Committee suggests that even the unauthorized receipt of classified information, and not merely its unauthorized disclosure, should be subject to legal penalties:

"The Committee's work plan for this fiscal year includes reviewing all legal avenues to bring to justice those who violate the law, including those who knowingly receive, what is essentially, stolen classified information."

It goes without saying that the President's irregular treatment of classified information in the Libby case invites cynicism about the whole subject.

The House Intelligence Committee report on the FY 2007 Intelligence Authorization Act is available here:

In a minority statement at the end of the report, Democrats criticized the President's warrantless surveillance program: "Allowing the NSA surveillance program to proceed without fully complying with the law threatens to undermine our entire Constitutional order--our system of checks and balances," they said.

Committee Republicans, in response, rejected what they termed "false and reprehensible claims of improper or illegal activities."


DCIA GOSS INVOKES STATE SECRETS PRIVILEGE

Director of Central Intelligence Agency Porter J. Goss invoked the state secrets privilege last month to block litigation filed against the CIA and another U.S. Government agency.

The likely effect is to terminate the case, for reasons that DCIA Goss said cannot be explained on the public record.

"After deliberation and personal consideration, I have determined that the bases for my assertion of the state secrets privilege cannot be filed on the public court record, or in any sealed filing accessible to the plaintiffs or their attorneys, without revealing the very information that I seek to protect," Director Goss stated in an unclassified March 16 Declaration.

Little is known about the case. Even the identity of one of the government agencies that is a defendant in the suit has been withheld from disclosure.

What is known is that last September, attorney Mark S. Zaid filed a lawsuit on behalf of an anonymous plaintiff, Jane Doe, and three minors, alleging violations of the Privacy Act, the Administrative Procedures Act, and the U.S. Constitution, in this country and abroad. A copy of the severely redacted complaint is available here:

The government defended its assertion of the state secrets privilege and moved for dismissal of the case in a March 29, 2006 memorandum of law which is available here:

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years," wrote William G. Weaver and Robert M. Pallitto in a study of the privilege in Political Science Quarterly last year ("State Secrets and Executive Power," PSQ, volume 120, no. 1, Spring 2005).

"Recent use of the state secrets privilege shows a tendency on the part of the executive branch to expand the privilege to cover a wide variety of contexts," they found.


TIME OUT, REALLY

The next issue of Secrecy News will be published the week of April 17.

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

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