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Secrecy News -- 04/24/07

From: Steven Aftergood <saftergood.nul>
Date: Tue, 24 Apr 2007 11:59:16 -0400
Fwd Date: Wed, 25 Apr 2007 08:11:32 -0400
Subject: Secrecy News -- 04/24/07


SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 43
April 24, 2007

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


**	PRESIDENTIAL SECRECY AND THE LAW
**	PENTAGON PROPOSES NEW ACCESS RESTRICTIONS
**	VARIOUS RESOURCES ON INTELLIGENCE AND SECURITY
**	AIPAC TRIAL LIKELY TO BE POSTPONED


PRESIDENTIAL SECRECY AND THE LAW

Presidential secrecy is best understood not as an expression of
executive strength but as a sign of weakness and insecurity,
according to a provocative new book on the subject.

"When the president lacks diplomatic or interpersonal skill, he
is likely to compensate by shielding his activities -- even
shielding his very self -- from the public, relying on secrecy
rather than diplomacy," write political scientists Robert M.
Pallitto and William G. Weaver in "Presidential Secrecy and the
Law."

The authors explore how the growth of executive branch secrecy
has transformed the institution of the presidency and the
character of American government.

Secrecy, they say, "has depoliticized the president's role in
governmental action. Where a president may do what is desired in
secret, there is no reason to withstand the ordeal of a
political battle to achieve the same ends."

"Increasingly, our governmental institutions are unable to hold
the president accountable for actions undertaken in secret in
the name of national security. In a subtle but sweeping way,
this failure is working detrimental changes in our federal
government institutions."

The authors review the landscape of national security secrecy
and the accumulation of unchecked executive authority and they
proceed to critique the performance of the legislative and
judicial branches.

Legislative initiatives such as the War Powers Act and the
Foreign Intelligence Surveillance Act that were intended to
restrain the executive branch have consistently backfired, they
contend, serving instead to legitimize the presidential actions
that they were intended to restrict.

"As counterintuitive as it may seem, we conclude that
congressional efforts to control executive abuse in areas of
purported national security concerns are ill-advised. These
efforts insulate the president and establish a bureaucratic
machinery and process for engaging in precisely the kinds of
activity that were meant to be avoided."

"We argue that aggressive action to control executive branch
abuse of secrecy should not come from Congress but from the
courts, which are in a position to provide the scrutiny
necessary to discourage presidential abuse of secrecy powers."

For more information, see "Presidential Secrecy and the Law" by
Robert M. Pallitto and William G. Weaver, Johns Hopkins
University Press, 2007:

http://www.press.jhu.edu/books/title_pages/9324.html

A White House obsession with secrecy should not be confused with
a commitment to good security. Rep. Henry Waxman yesterday
itemized several gross violations of classified information
security policy in the Bush White House and called upon former
White House chief of staff Andrew Card to explain security
practices during his tenure.

http://www.fas.org/irp/congress/2007_cr/waxman042307.pdf


PENTAGON PROPOSES NEW ACCESS RESTRICTIONS

The Department of Defense has asked Congress to enact two
expansive new provisions in the FY 2008 defense authorization
act to help it restrict public access to information.

One of the provisions would create a new exemption to the
Freedom of Information Act for certain unclassified information
related to weapons of mass destruction (WMD). The other would
establish civil and criminal penalties for the unauthorized
publication or sale of maps and images ("geodetic products")
that the Secretary of Defense has designated for "limited
distribution."

The proposed exemption for unclassified WMD information, which
was proposed and rejected by Congress last year (SN, 04/18/06),
is exceptionally broad in scope.

Its definition of "weapons of mass destruction" even extends to
devices that are not lethal, as long as they may cause "serious
bodily injury to a significant number of people" (50 U.S.C.
2302).

The Pentagon's argument for the exemption is further undermined
by the assertion that without it, unclassified information could
"easily" assist a terrorist to make or use a weapon of mass
destruction. The notion that terrorism is "easy," popular with
some New York Times op-ed writers and other lazy persons, was
memorably dissected by George Smith of GlobalSecurity.org (SN,
08/16/05).

The second provision to penalize "inappropriate disclosures" of
geodetic information, "including postings of such products on
the internet," originated with the Defense Criminal
Investigative Service (DCIS), which said it could not
effectively protect these unclassified maps and images without a
new criminal prohibition.

"For several years, products bearing the LIMDIS [limited
dissemination] caveat have wrongfully been offered for sale to
the public ... on eBay or displayed on internet sites. To date,
DCIS efforts to prosecute the eBay sellers have not been
successful."

An organization that engaged in unauthorized disclosure or
dissemination of such materials would be subject to a penalty of
"not more than $500,000 for each violation...."

The text of the two proposed Pentagon access restrictions, with
accompanying explanation and justification, may be found here:

http://www.fas.org/sgp/congress/2007/defauth-prop.html


VARIOUS RESOURCES ON INTELLIGENCE AND SECURITY

Some notable new or newly-acquired publications include these:

"Physical Security Program," Department of Defense Regulation
5200.08-R, April 9, 2007:

http://www.fas.org/irp/doddir/dod/5200_08r.pdf

"National Defense Intelligence College," Department of Defense
Instruction 3305.01, December 22, 2006:

http://www.fas.org/irp/doddir/dod/i3305_01.pdf

"Intelligence, Surveillance, and Reconnaissance: Preliminary
Observations on DOD's Approach to Managing Requirements for New
Systems, Existing Assets, and Systems Development," U.S.
Government Accountability Office testimony [GAO-07-596T], April
19, 2007:

http://www.fas.org/irp/gao/gao-07-596t.pdf

"Bioterrorism and Biocrimes: The Illicit Use of Biological
Agents Since 1900" by W. Seth Carus, August 1998 (rev. February
2001):

http://www.fas.org/irp/threat/cbw/carus.pdf


AIPAC TRIAL LIKELY TO BE POSTPONED

The unprecedented trial of two former officials of the American
Israel Public Affairs Committee, who are charged under the
Espionage Act with unlawful receipt and disclosure of national
defense information, is likely to be postponed from its
scheduled start date on June 4.

The need to resolve disagreements between the parties over the
handling of classified information involved in the case will
"knock the trial date into a cocked hat," said Judge T.S. Ellis,
III at an April 19 hearing.

http://www.fas.org/sgp/jud/aipac/rosen041907.html

The Judge gave prosecutors until May 2 to decide whether they
will propose a new set of "substitutions" for classified
evidence, which would then need to be reviewed by the defense
and the court under the provisions of the Classified Information
Procedures Act.

Alternatively, prosecutors may decide to stand fast with their
previous proposal to bar public access to the classified
evidence, a position that the judge has already rejected,
thereby setting the stage for an appeal.

Judge Ellis issued a detailed memorandum opinion on April 19 to
explain why he concluded that the prosecution proposal to
exclude public access to classified evidence is not authorized
by statute or precedent.

http://www.fas.org/sgp/jud/aipac/memop041907.pdf

The memorandum opinion advised the government that any proposal
to exclude public access to classified evidence would have to be
thoroughly supported by "a highly detailed explanation of the
ensuing harms to national security... [since] much of the
classified information at issue [here] is not self-evidently
damaging to national security."



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

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SUPPORT Secrecy News with a donation here:
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:  www.fas.org/sgp/index.html
email: saftergood.nul
voice: (202) 454-4691



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