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Secrecy News -- 03/05/07

From: Steven Aftergood <saftergood.nul>
Date: Mon, 5 Mar 2007 12:45:31 -0500
Fwd Date: Tue, 06 Mar 2007 07:30:14 -0500
Subject: Secrecy News -- 03/05/07


SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 25
March 5, 2007

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

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


**	"STATE SECRETS" SHIELD CIA FROM TORTURE ALLEGATIONS
**	DOE MARKING HANDBOOK FOR CLASSIFIED DOCUMENTS
**	SELECTED CRS REPORTS


"STATE SECRETS" SHIELD CIA FROM TORTURE ALLEGATIONS

A federal appeals court ruled last week that the overriding need
to protect "state secrets" makes it impossible to litigate
claims by a German citizen named Khaled el-Masri that he was
illegally detained and abused by the Central Intelligence Agency
in a case of "extraordinary rendition." The appeals court upheld
a lower court's earlier dismissal of the proceeding.

In a March 2 decision, the court rehearsed the allegations at
issue as well as the relevant case law on the state secrets
privilege.

El-Masri would not be able to make his case, the court
concluded, except by using "[privileged] evidence that exposes
how the CIA organizes, staffs, and supervises its most sensitive
intelligence operations."

Similarly, said the court, the CIA could not defend itself
against the allegations "without using privileged evidence."

"The main avenues of defense available [to CIA] in this matter
are to show that El-Masri was not subject to the treatment that
he alleges; that, if he was subject to such treatment, the
defendants were not involved in it; or that, if they were
involved, the nature of their involvement does not give rise to
liability. Any of those three showings would require disclosure
of information regarding the means and methods by which the CIA
gathers intelligence."

The court rejected the contention by the defense that by
yielding to the government's state secrets claims, the judiciary
had abdicated jurisdiction over a case of egregious governmental
abuse.

"Contrary to El-Masri's assertion, the state secrets doctrine
does not represent a surrender of judicial control over access
to the courts," the court said.

"As we have explained, it is the court, not the Executive, that
determines whether the state secrets privilege has been properly
invoked. In order to successfully claim the state secrets
privilege, the Executive must satisfy the court that disclosure
of the information sought to be protected would expose matters
that, in the interest of national security, ought to remain
secret," the court ruling stated.

http://www.fas.org/sgp/jud/statesec/elmasri030207.pdf

"Today the appeals court gave the CIA complete immunity for even
its most shameful conduct," said ACLU attorney Ben Wizner, who
represented El-Masri. "Depriving Khaled El-Masri of his day in
court on the ground that the government cannot disclose facts
that the whole world already knows only compounds the brutal
treatment he endured."

http://www.aclu.org/safefree/torture/rendition.html

Under current legal conditions, there is no disincentive for the
government to invoke the state secrets privilege, which often
terminates litigation in its favor. But a pending bill
introduced by Rep. Henry Waxman and several House colleagues
would change that calculation in the case of whistleblower
lawsuits.

Under the provisions of the Whistleblower Protection Act of
2007, "the court shall resolve the disputed issue of fact or law
in favor of the plaintiff," if the government's use of the state
secrets privilege prevents the plaintiff from making his case
and there is independent support for his argument from an
Inspector General investigation.

And whenever the state secrets privilege is asserted, the bill
would also require the agency head to submit a report to
Congress "describing the reasons for the assertion, explaining
why the court hearing the matter does not have the ability to
maintain the protection of classified information related to the
assertion," and providing other relevant information. See
section 10 of HR 985:

http://www.fas.org/sgp/congress/2007/hr985.html


DOE MARKING HANDBOOK FOR CLASSIFIED DOCUMENTS

A reference manual to assist government employees and
contractors in correctly marking classified Department of Energy
records has recently been published and distributed by DOE.

See "DOE Marking Handbook: How to Mark Matter Containing
Classified Information and Unclassified Controlled Information,"
September 26, 2006:

http://www.fas.org/sgp/othergov/doe/marking.pdf


SELECTED CRS REPORTS

Some recent products of the Congressional Research Service
obtained by Secrecy News that have not previously been made
readily available in the public domain include the following.

"Congressional Oversight of Intelligence: Current Structure and
Alternatives," updated February 15, 2007:

http://www.fas.org/sgp/crs/intel/RL32525.pdf

"Intelligence Spending: Public Disclosure Issues," updated
February 15, 2007:

http://www.fas.org/sgp/crs/intel/94-261.pdf

"The Foreign Intelligence Surveillance Act: An Overview of the
Statutory Framework and U.S. Foreign Intelligence Surveillance
Court and U.S. Foreign Intelligence Surveillance Court of Review
Decisions," updated February 15, 2007:

http://www.fas.org/sgp/crs/intel/RL30465.pdf

"Polygraph Use by the Department of Energy: Issues for
Congress," updated February 14, 2007:

http://www.fas.org/sgp/crs/intel/RL31988.pdf

"Data Mining and Homeland Security: An Overview," updated
January 18, 2007:

http://www.fas.org/sgp/crs/homesec/RL31798.pdf

"Abu Sayyaf: Target of Philippine-U.S. Anti-Terrorism
Cooperation," updated January 24, 2007:

http://www.fas.org/sgp/crs/terror/RL31265.pdf

"Airport Improvement Program: Issues for Congress," February 26,
2007:

http://www.fas.org/sgp/crs/misc/RL33891.pdf

"Tracking Current Federal Legislation and Regulations: A Guide
to Resources," February 28, 2007:

http://www.fas.org/sgp/crs/misc/RL33895.pdf



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

To SUBSCRIBE to Secrecy News, send email to
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Secrecy News is archived at:
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Secrecy News is available in blog format at:
http://www.fas.org/blog/secrecy/

SUPPORT Secrecy News with a donation here:
http://www.fas.org/static/contrib_sec.jsp

_______________________
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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