The government’s relentless pursuit of people suspected of mishandling or leaking classified information underscores the need to combat the misuse of classification authority, wrote J. William Leonard, the former director of the Information Security Oversight Office (ISOO), in an op-ed in the Los Angeles Times today.

“The Obama administration, which has criminally prosecuted more leakers of purportedly classified information than all previous administrations combined, needs to stop and assess the way the government classifies information in the first place.”

“Classifying information that should not be kept secret can be just as harmful to the national interest as unauthorized disclosures of appropriately classified information,” he wrote.  See “When Secrecy Gets Out of Hand” by J. William Leonard, Los Angeles Times, August 10.

Mr. Leonard recently filed a complaint with the new ISOO director, John Fitzpatrick, based on his assessment that a document that served as a basis for criminal prosecution in the case of Thomas Drake should never have been classified at all.

A bill that would curb the ability of courts to impose secrecy orders on public health and safety information was favorably reported by the Senate Judiciary Committee last week.  See the report (pdf) on the Sunshine in Litigation Act of 2011, August 2, 2011.

“Court secrecy prevents the public from learning about public health and safety dangers,” the Committee report said.  “Over the past 20 years, we have learned about numerous cases where court-approved secrecy, in the form of protective orders and sealed settlements, has kept the public in the dark about serious public health and safety dangers.”

Such cases, many of which are cataloged in the report, have included “complications from silicone breast implants, adverse reactions to a prescription pain killer, ‘park to reverse’ problems in pick-up trucks, and defective heart valves.”

“This problem most often arises in product liability cases,” the report said. “In exchange for  monetary damages, the victim is often forced to agree to a provision that prohibits him or her from revealing information disclosed during the case.”  As a result, “the public remains unaware of critical health and safety information that could potentially save lives.”

To address the problem, the bill would require judges to consider the public’s interest in disclosure health and safety information before issuing a protective order prohibiting its disclosure.

The bill, which has been introduced repeatedly without success since 1994, was opposed by most Committee Republicans.  (Senators Grassley and Graham supported it.)

In a minority statement appended to the report, the Republican Senators said the bill was unnecessary and would be counterproductive.

“Without the certainty that a protective order will be upheld, litigants will raise significantly more objections to litigation discovery in order to protect confidential information.  Parties will be less willing to submit to discovery if they believe information will be disclosed to the public,” the dissenting Senators wrote.

“This bill would simply provide a tool to trial lawyers to conduct fishing expeditions and file frivolous lawsuits with impunity,” they said.

The bill was also opposed by the American Bar Association, who said the proposal was unwarranted and burdensome.

A new edition of Jeffrey Richelson’s encyclopedic work on “The U.S. Intelligence Community” (Westview Press, July 2011) has just been published.

The book provides a uniquely synoptic view of the structure and functions of the massive U.S. intelligence bureaucracy.  Descriptive rather than prescriptive, the book serves best as a guide to some of the more obscure details of intelligence organizations, code names and procedures.

I provided a blurb for the book, which I have regularly found useful.  But it may be pointed out that the original edition of this work pre-dated the World Wide Web, and the latest (sixth) edition retains something of a pre-web sensibility.  If, for some reason, you wanted to know when the now-defunct National Imagery and Mapping Agency was established, Richelson could tell you.  But so could Wikipedia.  And while the new volume includes a list of Intelligence Community Directives, a directive (ICD 114) on GAO access to intelligence information that took effect June 30, 2011 was too recent to be included.

On the whole, however, “The U.S. Intelligence Community” benefits from Richelson’s meticulous research, his dispassionate presentation, and his robust sourcing, all of which make it an invaluable reference.

Update: It may be an error on my part to refer to the National Imagery and Mapping Agency as “defunct.” Although there is no longer an organization by that name, the former NIMA was redesignated in FY2004 as the National Geospatial-Intelligence Agency (NGA), which of course remains fully functional.

Could the unauthorized receipt of classified information be a felony?  Judge Leonie M. Brinkema made that startling claim in passing in a July 29 memorandum opinion (pdf) in the case of suspected leaker Jeffrey Sterling that was unsealed yesterday.  But her statement is almost certainly a misunderstanding and a misrepresentation of the law.

Judge Brinkema’s memorandum opinion, first reported and released by the New York Times, was written to substantiate an order issued last week that limited the scope of testimony of Times reporter James Risen in the upcoming trial of Mr. Sterling, and excused Mr. Risen from identifying his source, who the prosecution says was Mr. Sterling.  The newly released opinion affirmed the existence of a qualified reporter’s privilege which protects a journalist’s confidential relations with a source under some circumstances.

But astonishingly, in her explanation of why certain remarks previously made by Mr. Risen to a third party would not be considered hearsay and could be admitted at trial, Judge Brinkema wrote (at page 25):

“Risen’s statements are adverse to his penal interest because receiving classified information without proper authorization is a federal felony under 18 U.S.C. 793(e).”

This seems quite wrong.  The espionage statutes including 793(e) are notoriously ambiguous and susceptible to multiple, conflicting interpretations, but no one has ever read them as Judge Brinkema did.  Section 793(e) deals with unauthorized transmission of classified information;  contrary to her assertion, it does not prohibit unauthorized receipt at all.

Judge Brinkema offered further support for her claim:  “see U.S. Sentencing Guidelines Manual § 2M3.3 (providing a base offense level 29 for convictions for the ‘Unauthorized Receipt of Classified Information.’),” she wrote.

But upon inspection, that citation does not hold up either.  Section 2M3.3 provides sentencing guidelines for multiple statutes (18 USC 793d, e, and g; 18 USC 798; and 50 USC 783), one of which — 50 USC 783b — does indeed concern unauthorized receipt of classified information.  But that one applies only to agents or representatives of a foreign government, or to members of a Communist organization.

In other words, unless Mr. Risen is a foreign agent or a Communist, there is no statute that specifically prohibits him from receiving classified information without authorization.  There just isn’t.

(Footnote 6 of the new opinion adds:  “The government clearly recognizes Risen’s potential exposure to criminal liability and has offered to obtain an order of immunity for him.”  The nature of the supposed criminal liability or the proposed immunity was not spelled out.  Nor, of course, has Mr. Risen actually been charged with any offense.)

Judge Brinkema got it wrong, I believe.  That can happen.  The point is incidental to her larger argument, but unfortunately it adds new confusion to an area of the law that is already complicated and contested.  Ideally, one hopes that she would see fit to correct the record.

A newly disclosed opinion (pdf) of the Department of Justice Office of Legal Counsel (OLC) concludes that if information gathered in the course of surveillance under the Foreign Intelligence Surveillance Act (FISA) is used to revoke an individual’s security clearance, then that individual is generally entitled to receive notice of the information that was used against him — unless the information is subject to executive privilege.

The June 3, 2011 opinion also briefly addresses the subject of congressional involvement in classification policy and allows for a carefully hedged role for Congress.

“We agree with the FBI that the President’s constitutional authority to classify information concerning the national defense and foreign relations of the United States and to determine whether particular individuals should be given access to such information ‘exists quite apart from any explicit congressional grant’…,” wrote Caroline D. Krass, then the acting head of the Office of Legal Counsel.

“But that does not imply that Congress entirely lacks authority to legislate in a manner that touches upon disclosure of classified information,” she added.

“For example, we believe Congress’s authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit  Congress to impose the notification requirement [when FISA-derived information is used in other legal proceedings], even when that requirement reaches proceedings concerning security clearance revocations,” she wrote.

This does not really break any new ground in classification policy or politics.  Nor does it exhaust the subject of congressional authority with respect to classified information.  But it is noteworthy to have it re-stated publicly and officially nevertheless.

The Senate Intelligence Committee rejected an amendment that would have required the Attorney General and the Director of National Intelligence to confront the problem of “secret law,” by which government agencies rely on legal authorities that are unknown or misunderstood by the public.

The amendment, proposed by Sen. Ron Wyden and Sen. Mark Udall, was rejected on a voice vote, according to the new Committee report on the FY2012 Intelligence Authorization Act.

“We remain very concerned that the U.S. government’s official interpretation of the Patriot Act is inconsistent with the public’s understanding of the law,” Senators Wyden and Udall wrote.  “We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret.”

The Senators included dissenting remarks, along with the text of their rejected amendment, in the Committee report.

Sen. Wyden and Sen. Udall also offered another amendment that would have required the Justice Department Inspector General to estimate the number of Americans who have had the contents of their communications reviewed in violation of the FISA Amendments Act of 2008.  That amendment too was rejected, by a vote of 7-8.  All Committee Republicans, plus Democrat Bill Nelson (D-FL), opposed the amendment.

“It is a matter of public record that there have been incidents in which intelligence agencies have failed to comply with the FISA Amendments Act, and that certain types of compliance violations have continued to recur,” Senators Wyden and Udall wrote. “We believe it is particularly important to gain an understanding of how many Americans may have had their communications reviewed as a result of these violations.”

“We understand that some of our colleagues are concerned that our amendment did not explicitly state that the final report of the Inspector General’s investigation should be classified. We respectfully disagree that this is necessary,” they said. “In any event, we are confident that the executive branch will seek to classify any information that it believes needs to be secret, and that it is not necessary for Congress to direct that particular reports be classified.”

The Senate Intelligence Committee report was silent on the status of the Committee’s investigation of the CIA’s post-9/11 detention and interrogation program, which has been underway for over two years.

The Obama Administration is invoking the state secrets privilege to seek partial dismissal of a lawsuit alleging unlawful surveillance of Southern California mosques, reported Josh Gerstein in Politico on August 1.

J. William Leonard, the former director of the Information Security Oversight Office (ISOO) has filed a complaint with the current ISOO director alleging that the National Security Agency wrongly classified a document, which was then used as a basis for the Espionage Act indictment of Thomas Drake, the New York Times reported.  See “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, August 2.

“If you’re talking about throwing someone in jail for years, there absolutely has to be responsibility for decisions about what gets classified,” Mr. Leonard told the Times.

Mr. Leonard had been a volunteer expert witness for the defense in the recently concluded prosecution of Thomas Drake, the former NSA official. The document that is the subject of his complaint is no longer classified, but it is still subject to a protective order.  Mr. Leonard requested and received permission from the court to pursue his complaint last Friday.

“A surprising war on leaks under Obama,” an op-ed by Thomas Drake and Jesselyn Radack, was published in the Philadelphia Inquirer on August 1.

The Faster FOIA Act, a modest bit of legislation to establish a commission “to examine the root causes of FOIA delays,” was introduced and passed in the Senate yesterday.

It was previously passed in May, but the resulting bill was amended by the House in order to serve as a vehicle for its debt ceiling maneuver, stripping out the FOIA-related content.  To reactivate the original Faster FOIA Act bill, it needed to be reintroduced. The new bill, S. 1466, passed on a voice vote on August 1, and will move once again to the house.

The Department of Defense has updated its Freedom of Information Act directive (pdf).  In mostly new language added last week, the directive said “It is DoD policy to promote transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA; responding promptly to requests in a spirit of cooperation; and by taking affirmative steps to make the maximum amount of information available to the public, consistent with the DoD responsibility to protect national security and other sensitive DoD information.”

Also new is a report from the Congressional Research Service on “Freedom of Information Act (FOIA): Background and Policy Options for the 112th Congress” (pdf), July 26, 2011.

Update: See, relatedly, Senate Passes Faster FOIA Bill Again Amid Growing Criticism by Channing Turner, MainJustice.com, August 2.

A judge ruled on Friday that New York Times reporter James Risen will not have to testify about the identity of a source in the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Risen.

The July 29 court order (pdf) said that Risen must testify only about certain non-privileged information.  Specifically, Mr. Risen was directed to appear at trial in order to confirm:  “(1) that Risen wrote a particular newspaper article or chapter of a book; (2) that a particular newspaper article or book chapter that Risen wrote is accurate; (3) that statements referred to in Risen’s newspaper article or book chapter as being made by an unnamed source were in fact made to Risen by an unnamed source; and (4) that statements referred to in Risen’s newspaper article or book chapter as being made by an identified source were in fact made by that identified source.”

The court order by Judge Leonie M. Brinkema was framed as a “partial grant” of the government’s motion to subpoena Mr. Risen.  But it was actually a defeat for the prosecution and an unambiguous victory for Mr. Risen.  This is clear from the fact that the court’s very language describing the required scope of Mr. Risen’s testimony was taken — practically word for word — from the June 21 motion by Risen’s attorneys to quash the subpoena, in which they set forth the limits of his willingness to testify (pp. 45-46).

Beyond the four enumerated categories Risen voluntarily agreed to discuss, “I cannot testify as to the Government’s other questions,” Mr. Risen wrote in his own affidavit (paragraph 60).

“To answer the Government’s other questions would violate my agreement to maintain in confidence not just the name(s) of my source(s), but information that would tend to reveal the identity/ies of my source(s). If I provide the testimony that has been requested of me, including the ‘what,’ ‘how,’ ‘when,’ and ‘where’ of acquiring each piece of confidential information, doing so will reveal my confidential source(s), regardless of whether I directly provide any name(s),” Mr. Risen wrote. “Accordingly, I cannot comply with the subpoena.”

Now the court said that he will not have to.

James Risen praised the court decision in a comment to Glenn Greenwald of Salon:

This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.

A memorandum opinion explaining the court order is still undergoing declassification review available here.

“The challenges facing LE [law enforcement] increase with the introduction of each new wireless device,” according to a newly disclosed FBI publication (pdf) which traces the development of wireless communications.

The publication, entitled “Wireless Evolution”, was prepared by the FBI’s Operational Technology Division and published in Emerging Technologies Research Bulletin in March 2011.  A copy was obtained by the Federation of American Scientists under the Freedom of Information Act.

Originally marked “Law Enforcement Sensitive,” it was redacted for release under FOIA and much of the discussion of the implications of new technologies for law enforcement was withheld.  But the remainder provides a remarkably comprehensive (though jargon intensive) account of new communications technologies of interest to law enforcement.

A reader who saw the original, unredacted report said “It does as good a job as I have seen of laying out, in great detail, the evolution of mobile communications from hardware, application, and network perspectives as might be of implication to investigations and analysis.  It also offers good projections on future trends.”

Portions of the report were described in Wired Threat Level on July 28.

A new report (pdf) from the Congressional Research Service addresses related law enforcement policy issues.

“The operational realities of 21st century crime and policing present significant challenges to U.S. policy makers,” the report said. “[P]olicies directed toward countering crime in one reality will impact crime and law enforcement countermeasures in other realities.”

See “The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law Enforcement,” July 19, 2011.  Congress has instructed CRS not to make its publications directly available to the public.  A copy of the new report was obtained by Secrecy News.

The government’s treatment of former National Security Agency official Thomas Drake was abusive and akin to acts of British tyranny in pre-Revolutionary War days, said Judge Richard D. Bennett at the July 15 sentencing hearing which concluded the Drake case, one of the Obama Administration’s record number of anti-“leak” prosecutions.  A transcript (pdf) of that hearing was prepared at the request of Secrecy News.

Mr. Drake was originally suspected of leaking classified information to a reporter and had been charged with ten felony counts, all of which he denied.  The prosecution was unable to sustain any of those charges, and the case was settled after Mr. Drake pleaded guilty to a misdemeanor charge of exceeding authorized use of a government computer.  He was sentenced (pdf) at the hearing to a year of probation and 240 hours of community service.

The hearing transcript is a gripping document, with moments of high dramatic tension and unusual poignancy.

Much of the tension arose from the recommendation of the relentless prosecutor, William M. Welch, that Mr. Drake should be fined an additional $50,000 to serve as a deterrent and to “send a message” to other government employees who might be inclined to follow in his footsteps.

Mr. Welch complained that Mr. Drake had “received a $10,000 prize for having been a whistleblower,” namely the Ridenhour award, which was presented to Mr. Drake in April 2011.

Mr. Welch said that Mr. Drake should therefore be fined at least $10,000 in order to repudiate and cancel whatever “profit” and public respect he had gained from his whistleblowing activity, in which he exposed questionable management practices at the National Security Agency.

“He shouldn’t walk away in the sense of a comparison between the fine and this award with any semblance of a notion that he’s profited in any way from his conduct,” Mr. Welch said. “At a minimum, the fine ought to be $10,000, but I would urge the court to impose the $50,000.”

But the judge wasn’t having it.

“There has been financial devastation wrought upon this defendant that far exceeds any fine that can be imposed by me. And I’m not going to add to that in any way,” he said decisively.

Judge Bennett further rebuked the government for its handling of the case.  From the time when Drake’s home was searched in 2007, it took two and a half years before Drake was indicted, “and then over a year later, on the eve of trial, in June of 2011, the government says, whoops, we dropped the whole case.”

“That’s four years of hell that a citizen goes through,” the judge said.  “It was not proper. It doesn’t pass the smell test.”

“I don’t think that deterrence should include an American citizen waiting two and a half years after their home is searched to find out if they’re going to be indicted or not,” Judge Bennett said. “I find that unconscionable. Unconscionable. It is at the very root of what this country was founded on against general warrants of the British. It was one of the most fundamental things in the Bill of Rights that this country was not to be exposed to people knocking on the door with government authority and coming into their homes. And when it happens, it should be resolved pretty quickly, and it sure as heck shouldn’t take two and a half years before someone’s charged after that event.”

Mr. Welch said he was unable to account for the chronology of the case.  “With respect to the timeframe, you know, I can’t explain that to the court.”

Judge Bennett praised all of the attorneys involved in the case, and singled out Mr. Drake’s public defenders, James Wyda and Deborah L. Boardman.

“Your representation of your client has been at the highest levels of professionalism and at the highest levels of legal competence,” he said.

“There are not two lawyers in the country who could have done a better job for you, Mr. Drake, than the two lawyers who represented you here in this case. And I think it’s been a great showing on behalf of the Public Defender’s Office, which is not the least bit of a surprise to this legal community. But to the extent it has become known in any sense nationally it is well deserved because the reputation of Miss Boardman and Mr. Wyda are at the highest level, and I commend both of you for an outstanding representation of your client,” Judge Bennett said.

“And Mr. Drake, as to that, this matter is closed and I wish you the best of luck in the rest of your life.”

Although the indictment of Thomas Drake on charges of mishandling classified information has been dismissed, the case continues to generate significant new ripples.

Today, the Drake defense team filed a motion (pdf) to remove the court-imposed restrictions on one of the documents that Mr. Drake was accused of unlawfully possessing so that the purported classification of the document could be formally challenged by one of the defense’s expert witnesses — who is none other than the former head of the organization that oversees the entire classification system.

“The defense respectfully requests an Order of the Court that permits defense expert witness, J. William Leonard, the former Director of the Information Security Oversight Office (ISOO), to file a formal letter of complaint to the current Director of ISOO, John P. Fitzpatrick, regarding the government’s decision to classify and its reasons for classification of the document charged in Count One of the Indictment, entitled ‘What a Success’.”

Subsequent to the April 2010 indictment of Mr. Drake, the document was declassified (but not disclosed) in July 2010.  But the defense position is that it was never properly classified.

“If this case had gone to trial, Mr. Leonard was prepared to testify that the ‘What a Success’ document did not contain classified information and never should have been classified,” the defense motion said.

Therefore, “the defense is seeking an Order of the Court allowing him to disclose the unclassified information for the purpose of filing a complaint with ISOO and to discuss the issues raised in his complaint with any investigating authorities.”

None of this can really help or hurt Mr. Drake, whose case is concluded.  But the latest defense motion could lead to the correction of an error in the classification system.  It might even help to catalyze a broader reconsideration of classification policy at the NSA and elsewhere in government.