SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 63
June 30, 2011

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

WHAT IS THE PRESIDENT'S GREATEST RESPONSIBILITY?

According to President Obama, he has no higher duty than to protect the American people. But that's not what the Constitution says.

"As President, I have often said that I have no greater responsibility than protecting the American people," wrote President Obama in the new "National Strategy for Counterterrorism" that was released by the White House yesterday. A similar sentiment appears in the Introduction to the new Strategy, which states that the President "bears no greater responsibility than ensuring the safety and security of the American people."

This seems like a fateful misunderstanding. As chief executive and commander in chief of the armed forces, the President obviously has responsibility for national security. But to claim that he has no greater responsibility than "protecting the American people" is a paternalistic invention that is historically unfounded and potentially damaging to the political heritage of the nation.

The presidential oath of office that is prescribed by the U.S. Constitution (Art. II, sect. 1) makes it clear that the President's supreme responsibility is to "...preserve, protect, and defend the Constitution of the United States." There is no mention of public safety. It is the constitutional order that the President is sworn to protect, even if doing so entails risks to the safety and security of the American people.

The new Strategy document attempts to foreclose the possibility of any conflict between constitutional values and public security by asserting that the two always coincide. "We are committed to upholding our most cherished values as a nation not just because doing so is right but also because doing so enhances our security." It just so happens, the document says, that constitutional values are instrumentally useful in advancing security. "Adherence to those core values -- respecting human rights, fostering good governance, respecting privacy and civil liberties, committing to security and transparency, and upholding the rule of law -- enables us to build broad international coalitions to act against the common threat posed by our adversaries while further delegitimizing, isolating, and weakening their efforts." (p.4).

But the idea that adherence to constitutional values always enhances security is wishful thinking. The Constitution imposes burdensome limits on government authority and guarantees various rights in order to advance individual freedom, not collective security. As a result, the interests of security and constitutional freedom are often in conflict, and it is necessary to give priority to one or the other. One has to choose.


CIA WINS RULING IN PREPUBLICATION REVIEW DISPUTE

A federal court said that a former CIA clandestine services officer had breached his secrecy agreement by publishing a critical account of the CIA without obtaining prior Agency authorization.

Judge Gerald Bruce Lee of the Eastern District of Virginia ruled at a June 15 hearing that the CIA officer, who goes by the pseudonym "Ishmael Jones," would be held liable for publishing his 2008 book "The Human Factor: Inside the CIA's Dysfunctional Intelligence Culture" in the face of a refusal by the CIA's Prepublication Review Board to clear the volume for publication.

"It is uncontroverted in this case that Mr. Jones signed a secrecy agreement that required him to submit his manuscript for prepublication review and that required him not to publish it unless and until he received the Agency's written approval," Justice Department attorney Marcia Berman told the court on June 15. "It is also uncontroverted that Mr. Jones submitted a manuscript to the prepublication review process and that the Agency denied him permission to publish the manuscript."

But defense attorney Laurin Mills countered that the CIA breached the agreement first by failing to complete the review of Mr. Jones' manuscript in a timely fashion and then issuing a "bad faith denial." "I think after 18 months of going through the [prepublication review] process, with them denying him the right to publish anything but footnotes,... and going six months through an appeal process where the Government's own regulations say they're supposed to complete it in a month, he exercised his rights under the First Amendment to publish this."

"I don't think that this is really a very difficult question," said Judge Lee in ruling for the CIA and against Mr. Jones. "I think the Snepp case would control here," he said, referring to the case of former CIA officer Frank Snepp, whose 1977 Vietnam War memoir "Decent Interval" was published over CIA objections. The CIA won a U.S. Supreme Court ruling against Mr. Snepp and was awarded the royalties from his book.

"It seems to me that where [Ishmael Jones] signed a binding secrecy agreement that prevented him from publishing any materials prior to receiving written consent, that under Snepp liability... has been established. His signing a secrecy agreement does not violate his First Amendment rights," Judge Lee said.

If Mr. Jones believed CIA was wrongly blocking publication of his book, the Judge said, "he had a remedy and that remedy was to come to U.S. District Court and to pursue a claim to have the Court determine if the Agency's withholding of permission was unreasonable."

"[Jones' decision] to go forward without pursuing his remedies before the court was the breach. It was not the Government's breach. The Government was carrying out its agreement."

"What remains to be [decided] is the issue of what remedy the Government is entitled to because of the breach of secrecy agreement," Judge Lee said.

A copy of the June 15 hearing transcript was obtained by Secrecy News. The court ruling was first reported by Josh Gerstein in Politico on June 28. Frank Snepp presented a gripping account of his legal battle with CIA in the 1999 book "Irreparable Harm."


HISTORY OF THE GOLD STANDARD, AND MORE FROM CRS

Congress has directed the Congressional Research Service not to make its reports directly available to the public. This policy does not make any practical sense and does not command respect inside or outside of government, but it has proven easier to work around the policy than to change it. Here are some new CRS reports obtained by Secrecy News.

Brief History of the Gold Standard in the United States, June 23, 2011:

Military Construction: Analysis of the FY2012 Appropriation and Authorization, June 22, 2011:

Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court, June 17, 2011:

The Smart Grid and Cybersecurity -- Regulatory Policy and Issues, June 15, 2011:

DNA Databanking: Selected Fourth Amendment Issues and Analysis, June 6, 2011:

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

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