SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 66
July 9, 2008

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

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INTELLIGENCE ABUSES AND THE FISA AMENDMENTS ACT

"The history of the Intelligence Community is replete with instances of abuse of civil liberties," observed Lt. Gen. James R. Clapper last year in the course of his confirmation as Under Secretary of Defense for Intelligence.

That is not news, of course, though it is useful to have it acknowledged by the Pentagon's senior intelligence policy official. Also useful is Gen. Clapper's proposed remedy:

"The requisite elements of a program to prevent such abuse are: (1) clearly articulated and widely publicized policies; (2) training, both basic and refresher; and (3) a mechanism to verify compliance independently," he wrote in reply to a question from Sen. Carl Levin.

By these standards, the pending amendment to the Foreign Intelligence Surveillance Act that is being considered by the Senate today leaves much to be desired.

Far from being "clearly articulated," the legislation leaves even experts uncertain as to what its provisions mean. And by granting retroactive immunity to telephone companies for unspecified illegal acts that they may have committed, the legislation compromises the most important mechanism for independent verification of legal compliance, namely the judicial process.

"Does the new FISA bill authorize wholesale interception of all communications to and from the US," asked James X. Dempsey of the Center for Democracy and Technology, "or does it only authorize the interception of the communications of particular individuals?"

Incredibly, the answer is not reliably known. "Both national security and civil liberties interests weigh in favor of clarity on this question," Mr. Dempsey wrote last month.

Meanwhile, the congressional grant of immunity to telephone companies that are being sued for suspected acts of illegal surveillance under the President's warrantless surveillance program "is a naked intrusion into ongoing litigation," said Sen. Sheldon Whitehouse (D-RI) on the Senate floor yesterday.

"I am aware of no precedent for the Congress of the United States stepping into ongoing litigation, choosing a winner and a loser, allowing no alternative remedy," he said.

"I believe it will be determined by a court that ultimately this section of the legislation is unconstitutional, in violation of the separation of powers, because we may not, as a Congress, take away the access of the people of this country to constitutional determinations heard by the courts of this country."

"If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning," Sen. Whitehouse said.


DOD RENOUNCES SECURITY RESTRICTIONS ON UNCLASSIFIED RESEARCH

Department of Defense agencies have been directed not to impose any security-related access restrictions on unclassified fundamental research.

"The products of fundamental research are to remain unrestricted to the maximum extent possible," wrote John J. Young Jr., the Under Secretary of Defense for Acquisition, Technology and Logistics in a June 26, 2008 memorandum to the military services and defense agencies.

The new DoD policy responds to concerns about an increase in post-9/11 restrictions on disclosure of unclassified DoD-funded research in academia and industry. The new policy reaffirms a 1985 presidential directive (NSDD-189) which stated that national security classification is the only mechanism that may be used to limit disclosure of scientific research when there are valid national security concerns, but that unclassified research may not be restricted for security reasons.

"DoD will not restrict disclosure of the results of contracted fundamental research... unless the research is classified for reasons of national security, or as otherwise required by statute, regulation, or Executive Order," Mr. Young wrote.

"The performance of fundamental research... should not be managed in a way that it becomes subject to restrictions on the involvement of foreign researchers or publication restrictions," he wrote.

The new policy memorandum was first reported in "Pentagon: 'Fundamental' Research Best Left Unclassified" by Sebastian Sprenger, InsideDefense.com, July 7:

"Since the September 11 terrorist attacks, many research institutions have reported more restrictions on participation in government contracts and research grants, as well as more limits on publishing," wrote Jacques S. Gansler, a former Under Secretary of Defense, and Alice P. Gast, a former vice president at MIT, in the July 11 issue of Chronicle of Higher Education.

The writers, who chaired a National Research Council committee on "Science and Security in a Post-9/11 World," also noted with concern the rise of a "growing number of research projects that are categorized as 'sensitive but unclassified,' a designation that limits the scientific community's right to publish the research results and restricts participation of foreign-born scientists."


RENDITION, ORDINARY AND EXTRAORDINARY

"Rendition" refers to the transfer of a detained person to another jurisdiction for trial. For most purposes it is the same thing as extradition.

"Extraordinary rendition," however, leaves out the trial. It means the transfer of a prisoner elsewhere for purposes of interrogation and, too often, torture.

"Putting 'extraordinary' in front of rendition changes the meaning fundamentally," wrote constitutional scholar Louis Fisher in a comprehensive new law review article on the subject.

"Rendition operates within the rule of law; extraordinary rendition falls outside. Rendition brings suspects to federal or state court; extraordinary rendition does not."

See "Extraordinary Rendition: The Price of Secrecy" by Louis Fisher, American University Law Review, volume 57, number 5, June 2008:

There are intermediate cases. When Israeli agents kidnapped the Nazi war criminal Adolf Eichmann from Argentina in 1960, it was an act of abduction rather rendition. Yet Eichmann was taken to trial with full legal process.

"Because there was no extradition treaty between Israel and Argentina, the U.N. Security Council asked Israel to pay reparations to Argentina, and Israel complied," Fisher recalled.


SECRECY IN THE LAW REVIEWS

There has been a surge of publication of papers on official secrecy, national security classification and freedom of information in law reviews and other professional legal journals. Not all are equally original in their analysis or compelling in their conclusions, but they typically provide a scholarly perspective on matters of secrecy policy, and they often include valuable source citations.

Some of the more interesting new law review articles that have come to our attention are these:

"Congressional Access to National Security Information" by Louis Fisher, Harvard Journal on Legislation, Volume 45, No. 1, Winter 2008:

"Classified Information Leaks and Free Speech" by Heidi Kitrosser, University of Illinois Law Review, 2008, Issue 3:

"The Chilling of Speech, Association, and the Press in Post-9/11 America" (multiple papers and conference presentations), American University Law Review, June 2008:

"Government Lawyers and Confidentiality Norms" By Kathleen Clark, Washington University Law Review, 2008:

"Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege" by D. A. Jeremy Telman, Temple Law Review, 2007:

"'Nothing Is So Oppressive as a Secret': Recommendations for Reforming the State Secrets Privilege" by Emily Simpson, Temple Law Review, 2007:

"Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental, Health, and Safety Law," by Mary L. Lyndon, University of Colorado Law Review, Volume 78, Issue 2, Spring 2007 (not online).

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

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