A government “motion for clarification and reconsideration” of a court order that limited the obligation of reporter James Risen to testify at the upcoming trial of former CIA officer and accused leaker Jeffrey Sterling should be rejected, Risen’s attorneys argued (pdf) yesterday.

There is no need for “clarification” of the court’s July 29 order (pdf), they said, since it is perfectly clear.  Mr. Risen does not need to do more than to authenticate his authorship of a book he wrote, the court said, and to attest to its accuracy.

And there is no legitimate basis for “reconsideration,” they argued, since there has been no intervening change in the law and no evidence of judicial error.

“The Government says nothing… beyond a rehash of the Government’s prior arguments and offers nothing sufficient to alter the balancing of interests already performed by this Court,” Mr. Risen’s attorneys wrote.

Similar arguments against a subpoena were also offered yesterday by Mr. Sterling’s attorneys, who added:  “Every time the Government appeals to this Court to admit some new or additional subject matter of Mr. Risen’s proposed testimony, the Court should be reminded how little evidence the Government really has in this case.”

The prosecution has “a compelling interest in Mr. Risen’s eyewitness testimony” which is “critical to the case,” the government has argued (pdf).  (“Leak Prosecutors Press Again for Subpoena of Risen,” Secrecy News, September 6, 2011).

The latest edition of “The News Media & The Law,” the quarterly publication of the Reporters Committee for Freedom of the Press, includes several articles on the theme of “Journalists, Whistleblowers and National Security.”

Rep. Walter B. Jones (R-NC) paid tribute to military intelligence officer Lt. Col. Anthony Shaffer in a statement entered into the Congressional Record yesterday.

“Col. Shaffer’s storied career has been distinguished by his willingness and ability to work at the cutting edge of our nation’s intelligence community,” Rep. Jones said.

Though it was not mentioned by the Congressman, Shaffer is also the author of a book called “Operation Dark Heart,” which was memorably and ineffectively censored by the U.S. Government.  The Pentagon purchased 10,000 copies of the original version of the book in order to destroy them, but then a small number of uncensored review copies became public anyway.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010)

A newly updated doctrinal publication from the Joint Chiefs of Staff describes the infrastructure of legal review and support to all phases of military operations.

“It is DoD policy that members of the DoD components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.”

“Legal advisors actively participate in the entire planning process from joint intelligence preparation of the operational environment […], to mission analysis, to course of action development and recommendation, through execution.”  See “Legal Support to Military Operations” (pdf), Joint Publication 1-04, August 17, 2011.

The legal and constitutional framework for military operations, intelligence collection and other national security activities is explored in depth in the new edition of “National Security Law,” the preeminent casebook on <the subject for law students.  It presents concise treatments of dozens of topics — from secrecy to rendition and interrogation — with case studies and questions for discussion.

See “National Security Law” by Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, Fifth Edition, Aspen Publishers, August 2011.

A draft resolution (pdf) prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

“In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe.  It is to be debated by the full Assembly next month.  See “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations,” provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA.  The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

“The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions,” the draft resolution said.

The document pointed approvingly to Canada’s response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime.  The government of Canada apologized for the episode and provided financial compensation to Arar.  But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the “state secrets” privilege.

“As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms,” the draft resolution said.  The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

“We are confronted with a real cult of secrecy,” the document said. “It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency.”

The resolution praised the role of WikiLeaks in publishing “diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees.”  But it also stated that “It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel” — a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several “basic principles for judicial and parliamentary scrutiny of the secret services” in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, it said, “Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets.”

Stewart Nozette, a space scientist who was deeply involved in many of the nation’s most highly classified technology programs, pleaded guilty to attempted espionage for providing classified information to an undercover FBI agent posing as an Israeli intelligence officer.

According to a “factual proffer” (pdf) presented by the government in court yesterday, “The defendant [Nozette] initially claimed to be wary of providing any classified information to the UCE [Under Cover Employee of the FBI].” But with continued encouragement, “the defendant’s purported concerns were soon assuaged,” the proffer document stated, and he proceeded to exchange classified information for cash.

Nozette, who was privy to dozens of special access programs and compartmented intelligence programs, was also an innovative technologist with an impressive record of achievement.  One of the many unsettling features of his story is that in the past, when I knew him slightly, he was not motivated primarily by a desire for money nor was he oblivious to security.  How and why he changed has not been explained.  See, relatedly, “Nozette and Nuclear Rocketry,” Secrecy News, October 22, 2009.

The House Intelligence Committee issued its report on the FY2012 intelligence authorization act on September 2, and the bill is expected to go to the House floor on September 9.

The White House issued a veto threat against the bill yesterday based on its opposition to two provisions:  a requirement to produce State Department cables relating to Guantanamo detainees, and a requirement that the Director of the National Security Agency be confirmed by the Senate.

Somewhat oddly, those provisions, which originated in the Senate version of the bill, did not appear in the version reported by the House Intelligence Committee.  Rather, they were included in a “pre-conferenced” version of the bill (pdf) that was intended to expedite handling of the bill by incorporating some Senate provisions and which was provided to the House Rules Committee.  But Intelligence Committee chair Rep. Mike Rogers told the Rules Committee yesterday that he would offer a manager’s amendment on the House floor to remove the provisions that are opposed by the White House, mitigating or eliminating the veto threat.

The most significant features of the pending intelligence bill are contained in a classified annex that is not publicly available.  Among its less significant features, the unclassified bill would require the CIA to prepare a classified official report on the killing of Osama bin Laden (as first reported by Tony Capaccio of Bloomberg News).

“For years to come, Americans will look back at this event as a defining point in the history of the United States,” the House Committee believes, referring to the bin Laden killing.  “It is vitally important that the United States memorialize all the events that led to the raid so that future generations will have an official record of the events that transpired before, during, and as a result of the operation,” the Committee report said.

The House bill would also specify that the Department of Homeland Security’s Office of Intelligence and Analysis, rather than the Department of Homeland Security as a whole, is a member of the U.S. Intelligence Community.

Coincidentally, in an investigation published this week the Center for Investigative Reporting found that the DHS Office of Intelligence and Analysis “has fallen far short of its mission and done little to improve the accuracy and quality of the nation’s intelligence data.”  See “Homeland security office creates ‘intelligence spam,’ insiders claim” by Andrew Becker and G.W. Schulz, America’s War Within, September 5.

The House Intelligence Committee report is silent regarding the Office’s performance.

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is suspected of leaking classified information to author and New York Times reporter James Risen, last week renewed their request (pdf) for a subpoena to compel Risen to testify at Sterling’s upcoming trial.

A July 29 court order, issued by Judge Leonie M. Brinkema, had sharply limited the scope of Risen’s testimony, essentially requiring him only to authenticate his authorship of a book containing classified information concerning Iran’s nuclear program, and to attest to the accuracy of its contents.

Prosecutors said they need much more than that from Mr. Risen, and they filed a Motion for Reconsideration on August 24.

Then on September 2 they filed a Supplement arguing that further developments “have strengthened the government’s argument that it has a compelling interest in Mr. Risen’s eyewitness testimony because it is necessary or critical to the case, and because there are no alternative means from which the government can obtain the same evidence.”

First, they said that in the absence of Mr. Risen’s definitive testimony the defense planned to allege that multiple other individuals were or might have been the source of the leak. “As a result, the government will be forced to prove a negative, over and over again, that each of these individuals was not the leaker.”

In particular, prosecutors said, “the defendant is using the Court’s decision to shield Mr. Risen from testifying as a sword to falsely attack the character and reputation of congressional staffers, most prominently Ms. Vicki Divoll,” a former Senate Intelligence Committee staffer.

In an August 2 motion (pdf), the Sterling defense had alleged that Ms. Divoll’s Senate employment had been terminated because she breached Committee confidentiality rules.  “This is a false charge — and the defendant knows that it is false,” prosecutors said.  They cited a statement from an Intelligence Committee legal representative who indicated that “Ms. Divoll’s personnel file did not reflect a charge of disclosing classified information to anyone.”

Prosecutors also said that another argument by the Sterling defense about Mr. Risen’s writing style — a claim that no inferences about his sources can be drawn even when particular statements are attributed to named individuals — supports their request for a subpoena.

Specifically, the defense has provided notice (pdf) that University of Maryland Professor Mark Feldstein may be called to testify that Risen’s book “is written in the third-person omniscient, a narrative style in which the reader is presented the story by a narrator with an overarching perspective…. It is not uncommon using this style for an author to ascribe thoughts or motivations to particular ‘characters’, whether or not the author has actually spoken directly to the individual to whom thoughts and motivations are being ascribed.”  This style is exemplified by books authored by Bob Woodward, the defense notice said.

This kind of argument “further underscores why the government has a compelling interest in requiring Mr. Risen to testify,” prosecutors wrote.

In addition, a former intelligence official now tells prosecutors that portions of his testimony before a grand jury concerning certain conversations with Mr. Risen about Mr. Sterling were “a mistake on his part.”  As a result, prosecutors said, Mr. Risen himself is “the only source for the information the government seeks to present to the jury.”

In other developments in the case, Judge Leonie Brinkema issued an August 30 order (pdf) with several rulings favorable to the prosecution.  She denied a defense motion for discovery of classified intelligence estimates on Iran’s nuclear program.  She rejected defense arguments that the Classified Information Procedures Act does not permit the government to introduce substitutions for classified evidence.  And she granted a prosecution request that certain intelligence assets be permitted to testify behind a screen so that their identities are not made public.

The previously undisclosed subject matter of a leak of classified information by former FBI linguist Shamai Leibowitz concerned transcripts of FBI wiretaps of Israeli efforts to monitor and influence U.S. policy, Scott Shane revealed in the New York Times today.  See “Leak Offers Look at Efforts by U.S. to Spy on Israel.”  Mr. Leibowitz pleaded guilty to the unauthorized disclosures, which were provided to blogger Richard Silverstein.  Leibowitz was sentenced to jail in May 2010.

The latest annual report on secrecy (pdf) from the pro-transparency coalition Openthegovernment.org finds some positive signs of increasing openness amidst a continuing expansion of secret government.

“We are not as yet at the level of ‘unprecedented transparency’ the Obama Administration promises, but we are beginning to see signs that at least some of the Administration’s openness efforts are paying off,” said Patrice McDermott, coalition director and co-author of the annual report with Amy Bennett and Abby Paulson.

For example, the report noted that Freedom of Information Act (FOIA) backlogs government-wide were reduced by 10% in Fiscal Year 2010 compared to FY 2009.

The new annual report conveniently gathers all or most of the available quantitative measures of secrecy.  By doing so, however, it also highlights the inadequacy of such data.

Some of the measures are ambiguous, as in the observation that the number of “signing statements” issued by President Obama to challenge the legitimacy of newly enacted legislation is lower than that of other recent presidents.  The report praises this reduction.  But signing statements that publicly declare Administration non-compliance with legislation can easily be understood as signs of “openness,” even if they are unwelcome, since they explicitly signal executive branch attitudes and actions.

Many other measures of secrecy, including the volume of classification activity, convey almost no meaningful information.  They are vaguely descriptive of the constant churning of the classification system, but they fail to provide any basis for evaluation.  Is there too much secrecy?  too little?  just the right amount?  Anyone may have an opinion, but the quantitative data on secrecy gathered by the government provide no basis for reaching a firm judgment.  The data simply lack any kind of Figure of Merit that would allow one to distinguish legitimate national security secrecy from its spurious kin.  The failure to generate and provide meaningful metrics of secrecy is a serious impediment not only to public accountability, but also to proper management of the classification system.

Most people can vaguely recall that there was once no U.S. Department of Homeland Security and that there was a time when you didn’t have to take your shoes off before boarding an airplane or submit to other dubious security practices.

But hardly anyone truly comprehends the enormous expansion of the military, intelligence and homeland security bureaucracy that has occurred over the past decade, and the often irrational transformation of American life that has accompanied it.

The great virtue of the new book “Top Secret America” by Dana Priest and William M. Arkin (Little Brown, September 2011) is that it illuminates various facets of our secret government, lifting them from the periphery of awareness to full, sustained attention.

Top Secret America, which builds on the series of stories the authors produced for the Washington Post in July 2010, delineates the contours of “the  new American security state.”  Since 9/11, for example, some 33 large office complexes for top secret intelligence work have been completed in the Washington DC area, the equivalent in size of nearly three Pentagons.  More than 250,000 contractors are working on top secret programs.  A bewildering number of agencies – more than a thousand — have been created to execute security policy, including at least 24 new organizations last year alone.  And so on.

But the vast scale of this activity says nothing about its quality or utility.  The authors, who are scrupulous in their presentation of the facts, are critical in their evaluation:

“One of the greatest secrets of Top Secret America is its disturbing dysfunction.”

“Ten years after the attacks of 9/11, more secret projects, more secret organizations, more secret authorities, more secret decision making, more watchlists, and more databases are not the answer to every problem.  In fact, more has become too much.”

“It is time to close the decade-long chapter of fear, to confront the colossal sum of money that could have been saved or better spent, to remember what we are truly defending, and in doing so, to begin a new era of openness and better security against our enemies.”

(From this point of view, it was disappointing to hear the former chair of the 9/11 Commission, Gov. Tom Kean, declare yesterday that “we are not as secure as we could or should be.”  We need to accelerate along the path we have been following, Gov. Kean seemed to say, not to fundamentally change course.)

According to Priest and Arkin, “The government has still not engaged the American people in an honest conversation about terrorism and the appropriate U.S. response to it.  We hope our book will promote one.”

Despite the sobering subject matter, Top Secret America actually makes for lively reading.  It is full of the authors’ remarkable insights, anecdotes and encounters.  Dana Priest explored some of the physical geography of the classified world, taking elevators to unmarked floors in suburban office buildings and driving up to guard booths at secret facilities to innocently ask for information.  She accompanied police in Memphis while they conducted neighborhood surveillance with newfangled automatic license plate readers.  She was polygraphed at her request — and found to be a poor liar.  Bill Arkin, whose painstaking research informed the entire work (which is narrated by Priest), spent ten days in Qatar at the U.S. military facility that controls air operations in Iraq, Afghanistan and Pakistan, and somehow got himself invited to classified briefings.

One question that lurks throughout the book is whether the excesses and misjudgments that constitute so much of Top Secret America can be corrected or reversed.  The authors are not very optimistic, particularly since there are so many people who benefit from current arrangements, however wasteful, useless or pointless they might be.

By way of illustration they cite U.S. Northern Command, the newest military command that is nominally responsible for defense of North America but in practice is largely subordinate to other agencies and organizations.  “The fact that Northern Command would even continue to exist as a major, four-star-led, geographic military command, with virtually no responsibilities, no competencies, and no unique role to fill, demonstrated the resiliency of institutions created in the wake of 9/11 and just how difficult it would be to ever actually shrink Top Secret America,” they wrote.

Secrecy is naturally a persistent theme throughout the book.  As is often the case in national security reporting, the authors relied on unauthorized disclosures to complement their own research and reporting. And in this case, such disclosures served as a particularly effective antidote to overclassification.

“Most of those who helped us did so with the knowledge that they were breaking some internal agency rule in doing so;  they proceeded anyway because they wanted us to have a more complete picture of the inner workings of the post-9/11 world we sought to describe and because they, too, believe too much information is classified for no good reason,” they wrote.

At the same time, the authors noted that they “have left out some information” based on national security considerations.

Top Secret America will be featured on PBS Frontline on September 6, the book’s official release date.

Last month Sandia National Laboratories published an unlikely account of the thought of C.S. Peirce (1839-1914), the American pragmatist philosopher.  See “Peirce, Pragmatism, and the Right Way of Thinking” (pdf) by Philip L. Campbell of the Sandia Networked Systems Survivability and Assurance Department, Sandia Report SAND2011-5583, August 2011.

What is the connection between Peirce’s philosophy and the national security mission of Sandia, or of the Department of Energy’s National Nuclear Security Administration, which sponsored the paper?  The author did not reply to an email inquiry from Secrecy News on that point yesterday.  But the paper states that “In practical terms, we can use Peirce’s lectures to build a model of how we make decisions.” (p. 12)

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 (pdf) 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 (pdf).

“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.”