[Intelforum] Secrecy News -- 10/31/05 (IF)

Mon Oct 31 14:23:09 EST 2005

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 101
October 31, 2005

**	WHITE HOUSE NAMES NEW PFIAB MEMBERS
**	FITZGERALD ON LEAKS AND THE ESPIONAGE ACT
**	SECRET DHS TRANSPORTATION STRATEGY DRAWS FIRE
**	SASC REPORT ON THE 2006 INTEL AUTHORIZATION ACT
**	MISCELLANEOUS RESOURCES

WHITE HOUSE NAMES NEW PFIAB MEMBERS

President Bush has announced the names of a dozen individuals
whom he will appoint to the President's Foreign Intelligence
Advisory Board (PFIAB), the White House intelligence oversight
body.

Stephen Friedman, an investment banker and a previous PFIAB
member, will serve as the next PFIAB chairman.  Other appointees
include former congressman Lee Hamilton and former National
Reconnaissance Office director Martin Faga.  See the full list
in this October 27 White House announcement:

     http://www.fas.org/irp/news/2005/10/wh102705.html

PFIAB "provides advice to the President concerning the quality
and adequacy of intelligence collection, of analysis and
estimates, of counterintelligence, and of other intelligence
activities.  The PFIAB, through its Intelligence Oversight
Board, also advises the President on the legality of foreign
intelligence activities," according to a description on the
White House web site.

As an intelligence oversight mechanism, PFIAB is inherently
flimsy.  It provides no public accountability to speak of.

Yet given the diminished state of congressional intelligence
oversight today, PFIAB has arguably become more important than
ever.

Recently, for example, the Electronic Privacy Information Center
(EPIC) was able to uncover a series of investigative violations
committed by the FBI because of a provision requiring agencies
to report such violations to the PFIAB's Intelligence Oversight
Board.  There is no requirement that the violations be reported
to Congress.

"It's because of section 2.4 [of executive order 12863, requiring
reports to the PFIAB IOB] that we got the recent documents of
alleged abuse by the FBI under the Patriot Act," said Marc
Rotenberg of EPIC.  See the documents here (3.1 MB PDF file):

  http://www.epic.org/privacy/terrorism/usapatriot/foia/iob.pdf

FITZGERALD ON LEAKS AND THE ESPIONAGE ACT

The section of the Espionage Act that prohibits the unauthorized
disclosure of national defense information is "a difficult
statute to interpret," said Special Prosecutor Patrick
Fitzgerald.  "It's... a statute you ought to carefully apply."

Mr. Fitzgerald, who announced the indictment of Vice Presidential
chief of staff I. Lewis "Scooter" Libby on perjury and other
charges last week, acknowledged widespread concerns about using
the Espionage Act to punish leaks to the media of classified
information, such as the identity of CIA officer Valerie Plame.

"I think there are people out there who would argue that you
would never use that [i.e. the Espionage Act] to prosecute the
transmission of classified information because they think that
would convert that statute into what is in England, the Official
Secrets Act."

"I don't buy that theory, but I do know you should be very
careful in applying that law because there are a lot of
interests that could be implicated in making sure that you pick
the right case to charge that statute," Mr. Fitzgerald said at
his October 28 press briefing on the Libby indictment.

Although the Espionage Act has not been invoked in Fitzgerald's
ongoing investigation, using it to punish leaks remains a live
issue in the prosecution of two former officials of the American
Israel Public Affairs Committee for allegedly mishandling
classified information.  (See Secrecy News, 10/19/05).

The potential use of the Espionage Act to punish leakers was
addressed lately by Morton Halperin, myself and Larry Johnson in
"Complexity of Prosecuting Leakers Stirs Concern" by Larry
Abramson, NPR Morning Edition, October 28:

   http://www.npr.org/templates/story/story.php?storyId=4979174

SECRET DHS TRANSPORTATION STRATEGY DRAWS FIRE

In an increasingly familiar complaint, the Department of Homeland
Security was criticized for classifying its National Strategy
for Transportation Security, a move which rendered it
inaccessible to state and local governments, emergency
responders and the public.

"What use is it if the people who have to adapt to it don't know
anything about its existence or what it says?" asked former Sen.
Slade Gorton (R-WA) in testimony before a subcommittee of the
Senate Judiciary Committee last week.

"Are there elements in an overall transportation plan that we
shouldn't broadcast to the world?" Sen. Gorton continued.  "I'm
sure there are."

"But the existence of the plan and what people who are in the
private sector need to know about the plan in order to carry out
its recommendations-- of course they shouldn't be classified."

"The difficulty here in the United States... is the ease with
which information is classified; the temptation once it's
classified not to share it, often even with other agencies and
the like; and the extreme difficulty of getting declassified.
This is just a particular example," Sen. Gorton said.

The controversy was reported in "U.S. in dark on security plan"
by Lisa Friedman, Los Angeles Daily News, October 27:

     http://www.dailynews.com/news/ci_3154426

SASC REPORT ON THE 2006 INTEL AUTHORIZATION ACT

The pending intelligence authorization act for fiscal year 2006
was reviewed and modified by the Senate Armed Service Committee
in a new report on the bill.

Most of the Committee's changes are classified, but the
unclassified report describes several actions that generally
reflect Defense Department interests.

The amended bill would specify that the authority of the Director
of National Intelligence over human intelligence does not extend
to tactical intelligence; would limit the authority of the
inspector general of the intelligence community with respect to
matters within the jurisdiction of the Pentagon inspector
general; and would advance a controversial freedom of
information exemption for operational files of the Defense
Intelligence Agency.  It would also shorten the duration of a
pilot program permitting intelligence agency access to official
Privacy Act records from four years to two years.

See the Senate Armed Services Committee report on the 2006
intelligence authorization act, Sen. Rept. 109-173, October 27,
2005, here:

     http://www.fas.org/irp/congress/2005_rpt/srpt109-173.html

MISCELLANEOUS RESOURCES

A variety of noteworthy publications, some widely reported and
some not, have been issued in recent days, including these:

The National Intelligence Strategy of the United States, which
incongruously proposes "the growth of democracy" as an
intelligence objective, was issued by the Director of National
Intelligence on October 25:

     http://www.fas.org/irp/news/2005/10/dni102505.html

The indictment of I. Lewis "Scooter" Libby on perjury,
obstruction of justice and other charges was announced in an
October 28 news release:

     http://www.fas.org/sgp/news/2005/10/libby.pdf

A copy of the indictment itself is here:

     http://www.fas.org/sgp/jud/libby_indict.pdf

U.S. policy towards Africa during the Nixon Administration is the
subject of a new volume of declassified government records
published in the State Department's official Foreign Relations
of the United States series.  The full text, published only
online, is here:

     http://www.state.gov/r/pa/ho/frus/nixon/e5/

Foreign language capability and regional expertise shall "be
considered critical competencies essential to the DoD mission,"
a new Department of Defense Directive states.  See DoD Directive
5160.41E, "Defense Language Program," October 21, 2005:

     http://www.fas.org/irp/doddir/dod/d5160_41.pdf

Government access to criminal history records to determine an
individual's suitability for participation in highly classified
special access programs is addressed in DoD Instruction 1304.23,
"Acquisition and Use of Criminal History Record Information for
Military Recruiting Purposes," October 7, 2005:

     http://www.fas.org/irp/doddir/dod/i1304_23.pdf

The pilots and support personnel who engaged in paramilitary
operations as part of the CIA "proprietary" known as "Civil Air
Transport" and "Air America" from 1946 through 1976 are not
considered to have been "active duty" military personnel for
purposes of benefits provided by the Department of Veterans
Affairs, the Secretary of the Air Force has determined.  See
this October 18 Federal Register notice:

     http://www.fas.org/irp/news/2005/10/fr101805.html

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691