SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 82
August 26, 2011

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

GOVT ASKS COURT TO RECONSIDER SUBPOENA FOR REPORTER RISEN

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author James Risen, have asked a federal court to reconsider the July 29 ruling that narrowly limited Risen's obligation to testify at the trial of Mr. Sterling. ("Reporter Risen Will Not Have to Identify Source in Leak Trial," Secrecy News, August 1.)

"There is no equivalent for Risen's eyewitness testimony," prosecutors wrote in an August 24 motion for reconsideration, arguing that Risen's participation was indispensable to the prosecution of Mr. Sterling. "There is no non-testimonial direct evidence in this case that can establish what Risen can."

"There are no recorded telephone calls in which Sterling discloses classified information to Risen, nor are there emails in which Sterling discloses the same. Had there been such recordings or emails, that evidence would have been disclosed... and the government certainly would have provided such discovery after indictment. There simply is no such evidence," the prosecution motion said.

The motion specifically asked the court to affirm that Mr. Risen must not only authenticate the reporting in his book, for which Mr. Sterling was allegedly a source, but that he must also authenticate the original book proposal that he submitted to his publisher, a point that was not addressed in the court's July 29 ruling.

"Risen's book proposal identified his sources as 'CIA officers involved in the operation'.... In addition, the book proposal contains very specific, classified information that the defendant and very few others knew, thus tending to prove that the defendant was the source of the information," the motion said.

More broadly, prosecutors wrote, "The government has a compelling interest in prosecuting government employees who leak classified, national defense information. Tow of the most important duties of the Executive Branch are prosecuting violations of federal criminal laws and protecting the nation's security secrets. Thus, there are few scenarios where the government's interests can be more profound and compelling than a criminal prosecution involving national security interests."


GOVT WILL NOT DECLASSIFY 2001 OPINION ON SURVEILLANCE

The Department of Justice refused this month to declassify a 2001 legal Office of Legal Counsel opinion by John C. Yoo concerning the legality of the Bush Administration's warrantless surveillance program.

The redacted information in the OLC opinion "is classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege," wrote Paul P. Colborn, Special Counsel at OLC.

The document had been requested by researcher Matthew M. Aid, who writes on NSA and surveillance policy.

Eight partial sentences from the 21 page opinion were released, including a previously declassified assertion that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid such a reading."

That claim alone has drawn criticism from some members of Congress.

"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Sen. Sheldon Whitehouse told the Washington Post in a May 23, 2008 story. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

"The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Justice official Brian A. Benczkowski, quoted in the Post.

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

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