SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 64
July 1, 2008

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DNI ASSIGNED TO OVERSEE ALL SECURITY CLEARANCE POLICY

The Director of National Intelligence will oversee security clearance investigations and related policies on access to classified information for all federal agencies, according to an executive order issued yesterday by President Bush.

The move appears to significantly augment the authority of the DNI since it extends his reach to personnel policies and security clearances that are unrelated to intelligence information.

"The Director of National Intelligence ... shall direct the oversight of investigations and determinations of eligibility for access to classified information or eligibility to hold a sensitive position made by any agency," the order stated.

(A "sensitive position," as defined in a 1953 executive order, is one whose "occupant ... could bring about, by virtue of the nature of the position, a material adverse effect on the national security.")

The DNI was made "responsible for developing uniform and consistent policies and procedures" for security clearance investigations and adjudications government-wide.

The new executive order also reiterates the familiar requirement of security clearance "reciprocity," i.e. that "background investigations and adjudications shall be mutually and reciprocally accepted by all agencies."

Illustrating why this requirement has never been satisfactorily implemented, the new order firmly prohibits agencies from imposing their own additional security requirements but then, in the very same sentence, allows exceptions for polygraph testing or, more generally, "to protect national security."

See "Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information," Executive Order 13467, June 30, 2008:

COURT INVALIDATES DETAINEE'S "ENEMY COMBATANT" STATUS

A federal appeals panel found that the designation of a Chinese detainee held in U.S. custody as an "enemy combatant" was "not valid" because the classified evidence offered by the government was not sufficient to sustain the charge.

In the first legal challenge to enemy combatant status, Huzaifa Parhat, an ethnic Uighur, admitted to being an enemy of the People's Republic of China but denied any connection with al Qaida or the Taleban and specifically denied that he was an enemy of the United States.

Military prosecutors argued that he qualified as an enemy combatant because he was "affiliated" with military forces that were "associated" with al Qaida and the Taleban.

In a straightforward but nevertheless thrilling exercise of judicial authority, judges said that the classified evidentiary basis for that argument could not be independently validated and was therefore inadequate.

"We must be able to assess the reliability of that evidence ourselves," the judges wrote.

"The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded," the court said.

Adding a literary flourish, the judges wrote that "the fact that the government has 'said it thrice' does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) ('I have said it thrice: What I tell you three times is true.')."

Likewise, they wrote, "the government insists that the statements made in the [classified evidentiary] documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court."

In a court of law, the prosecution must prove its case and not simply assert it, the judges explained.

"We [...] reject the government's contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government's charges," the ruling stated.

The court also denied a government request to block public disclosure of certain unclassified information in the trial record, including material marked "Law Enforcement Sensitive." (The new ruling is apparently the first to cite President Bush's memorandum on "controlled unclassified information" that was published on May 9, 2008.)

Significantly, the court rejected the government's attempt "unilaterally to determine whether information is 'protected'." Sealing the judicial record, the judges said, is a decision for the court to make.

"Without an explanation tailored to the specific information at issue, we are left with no way to determine whether it warrants protection -- other than to accept the government's own designation. This we cannot do."

Instead, the government was directed to file a new motion "accompanied by pleadings specifically explaining why protected status is required for the information that has been marked. Opposing counsel may file a response, and the government may file a reply, pursuant to our usual rules."

The classified June 20, 2008 ruling in Huzaifa Parhat v. Robert M. Gates was redacted and approved for publication on June 30. A copy is available here:

IRAN'S NUCLEAR PROGRAM, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service include the following. (These reports have also been made available on OpenCRS at www.opencrs.com.)

"Iran's Nuclear Program: Status," June 23, 2008:

"Boumediene v. Bush: Guantanamo Detainees' Right to Habeas Corpus," June 16, 2008:

"Status of Forces Agreement (SOFA): What Is It, and How Might One Be Utilized In Iraq?," June 16, 2008:

"The National Bio- and Agro-Defense Facility: Issues for Congress," updated May 19, 2008:

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

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