SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 99
October 10, 2007

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

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MANAGING INTELLIGENCE CONTRACTORS

For better or worse, contractors are now an indispensable part of the U.S. intelligence workforce, and greater attention is needed to manage them effectively, argues a recent study by a military intelligence analyst.

The author presents criteria for evaluating contractor support to various intelligence functions, and applies them in a series of case studies.

"This study assesses the value of current commercial activities used within DoD elements of the Intelligence Community, particularly dealing with operational functions such as analysis, collection management, document exploitation, interrogation, production, and linguistic support."

In the best case, interactions with contractors can serve as a spur towards modernization of the intelligence bureaucracy itself, suggests the author, Glenn R. Voelz, a U.S. Army Major.

"Collaborative effort with nongovernmental entities offers a powerful mechanism to diversify and strengthen the IC's collection and analytical capabilities, but to fully realize the benefit of these resources the management and oversight of commercial providers must become a core competency for all intelligence organizations."

A copy of the study, published by the Joint Military Intelligence College, was obtained by Secrecy News.

See "Managing the Private Spies: The Use of Commercial Augmentation for Intelligence Operations" by Maj. Glenn J. Voelz, Joint Military Intelligence College, June 2006:

Also on the general subject of contractors, there is a January 2003 U.S. Army Field Manual entitled "Contractors on the Battlefield," FM 3-100.21:

Among the more or less successful intelligence collaborations with industry that were examined by Maj. Voelz, there is nothing quite like the Bush Administration's use of telephone companies to support the warrantless interception of domestic communications, a probable violation of the law for which the Administration is now urgently seeking retroactive immunity.


CONGRESS URGED TO ADDRESS STATE SECRETS PRIVILEGE

If foreign terrorists set out to undermine confidence in the American legal system as an arbiter of justice, they could hardly do more damage than the Bush Administration has done by its use of the "state secrets" privilege.

Khaled el-Masri, who alleged that he was abducted and tortured by the Central Intelligence Agency, will not be permitted to argue his case in a U.S. court because the Bush Administration asserted that "state secrets" would be compromised, and the U.S. Supreme Court this week concurred, rejecting el-Masri's appeal.

This means that even if all of el-Masri's allegations are true, there is no legal remedy available to him. The courthouse doors are closed in the United States. That is bad law and bad policy.

It also seems to be unnecessary, since courts have long demonstrated an ability to securely handle highly classified information, and have frequently done so in espionage trials and certain other criminal cases.

Recently, a group of law professors, scholars and activists urged Congress to confront the executive branch's use of the state secrets privilege, and to establish new constraints on the privilege.

"Congress has a duty to examine how the state secrets privilege is being invoked by the executive branch and interpreted by federal courts. There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process," they wrote.

"Congress possesses the constitutional authority to act, and it should do so."

The October 4 letter, coordinated by the nonprofit Constitution Project, may be found here:


INVENTION SECRECY UP SLIGHTLY IN 2007

At the end of Fiscal Year 2007, there were a total of 5,002 invention secrecy orders in effect under the Invention Secrecy Act of 1951, up from 4,942 the year before.

U.S. government agencies imposed secrecy orders on 53 patent applications filed by private inventors in FY 2007, prohibiting their disclosure or export, according to statistics obtained by Secrecy News this week from the U.S. Patent and Trademark Office.

The so-called "John Doe" secrecy orders imposed on private inventors are a constitutional anomaly since they appear to infringe on private speech. But their constitutionality has never been successfully challenged in court.

See the latest invention secrecy statistics here:

Some related background on invention secrecy is here:


CLASSIFICATION MARKINGS, NOW AND THEN

The Information Security Oversight Office has published an expanded guide explaining how to properly mark classified documents. See "Marking Classified National Security Information," October 2007:

A 1972 monograph prepared at the National Archives reviews the history of information control markings on military documents back to the 19th century and traces their development up to World War II. Such markings represent part of the pre-history of today's national security classification system.

See "Origins of Defense-Information Markings in the Army and Former War Department" by Dallas Irvine, National Archives Staff Information Paper, 1972:

A sizable collection of historic military regulations relating to protection of confidential information is presented in a series of annexes to the paper (5 MB PDF).

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

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