[Intelforum] Secrecy News -- 06/11/08

Wed Jun 11 11:00:01 EDT 2008

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 57
June 11, 2008

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

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**	REPORTER BILL GERTZ SUBPOENAED TO TESTIFY ON SOURCES
**	THE WILLARD REPORT ON UNAUTHORIZED DISCLOSURES (1982)
**	REFORM OF THE STATE SECRETS PRIVILEGE

REPORTER BILL GERTZ SUBPOENAED TO TESTIFY ON SOURCES

Washington Times reporter Bill Gertz was subpoenaed by a federal court
last month to testify regarding his sources for a 2006 story relating
to alleged Chinese espionage.

While Mr. Gertz has been a prolific reporter of classified information
for two decades and has even republished classified documents in his
books, his current legal entanglement arises not from national security
secrecy but from grand jury secrecy.

A court found that Mr. Gertz had disclosed secret grand jury
information pertaining to the trial of Chi Mak and others who were
accused and later convicted of illegal exports of defense technology to
China.

"During the course of proceedings in this case, Washington Times
reporter Bill Gertz authored a May 16, 2006 article that revealed
secret information before a grand jury," wrote Judge Cormac J. Carney
in a May 1, 2008 Order.

Judge Carney noted that the Government had conducted a year-long
investigation of the matter and interviewed "over 500 persons of
interest" without being able to identify the source of the grand jury
leak.

"Accordingly, the Court finds it necessary to subpoena Mr. Gertz to
testify regarding the identity of the source that provided him with the
grand jury information," the Judge wrote.

     http://www.fas.org/sgp/jud/gertz050108.pdf

In a robustly argued response on June 5, attorneys for Mr. Gertz urged
the Court to withdraw the subpoena.

Mr. Gertz's story, they said, had not actually revealed "matters
occurring before the Grand Jury."  Rather, he had reported on the
intentions of prosecutors and relied on non-Grand Jury sources,
including public statements by prosecutors.  In support of their
position, they cited a ruling in U.S.A. v. Rosen (the "AIPAC" case) in
which the Court had declined to find a violation of grand jury secrecy
under somewhat similar circumstances.

"There is simply no evidence contained in the record proving, or even
tending to prove, that actual Grand Jury information was disclosed to
Mr. Gertz."

Along with other factual and legal arguments, Mr. Gertz's attorneys
also asserted a First Amendment privilege on his behalf.  The subpoena,
including the command for Mr. Gertz to testify, "is unreasonable and
oppressive," they concluded.

     http://www.fas.org/sgp/jud/gertz060508.pdf

Mr. Gertz had been ordered to appear in court in Santa Ana, California
on Friday, June 13, but that date has been postponed.

The subpoena of Mr. Gertz as well as his attorneys' response were both
first reported by Josh Gerstein in the New York Sun on May 30 and June
6.

Mr. Gertz is represented by attorneys Siobhan Cullen, Allen Farber, and
Charles Leeper of Drinker, Biddle & Reath.  That law firm is probably
famous for other things, but it is best known to Secrecy News for
representing the plaintiffs in the 1953 Reynolds case that established
the state secrets privilege in the U.S. Supreme Court, and also for
attempting to re-open the case fifty years later on grounds that a
fraud had been committed upon the Court.

THE WILLARD REPORT ON UNAUTHORIZED DISCLOSURES (1982)

"Leak investigations do not focus on the receiving journalist for a
variety of reasons," according to a 1982 government report on
unauthorized disclosures of classified information.

One of those reasons is that "journalists are unlikely to divulge their
sources in response to a subpoena for documents or testimony before a
grand jury, and contempt sanctions against journalists in other types
of cases have not been effective."

In other words, according to this analysis, the traditional refusal of
journalists to cooperate with leak investigations protects them in the
long run by discouraging government officials from undertaking further
investigations.

The 1982 report, known as the "Willard Report" after its chairman,
Richard K. Willard, is a minor classic of cold war secrecy.  Though
frequently cited in the literature, it has not been available online
until now (thanks to S).

See "Report of the Interdepartmental Group on Unauthorized Disclosures
of Classified Information" (the "Willard" Report), March 31, 1982:

     http://www.fas.org/sgp/library/willard.pdf

REFORM OF THE STATE SECRETS PRIVILEGE

"In too many cases, claims of state secrets have succeeded in keeping
important cases out of court entirely or preventing courts from
considering evidence vital to the outcome of a case," said Rep. John
Conyers, Chairman of the House Judiciary Committee, at a January 29
hearing on "Reform of the State Secrets Privilege".  The record of that
hearing has just been published.

     http://www.fas.org/sgp/congress/2008/statesecref.html

In one recent case, a federal judge did what others have often failed
to do in state secrets cases, which is to critically examine the basis
for the assertion of the state secrets privilege.

Judge Sidney I. Schenkier of the Northern District of Illinois
conducted hearings as well as in camera review of documents that the
government insisted were protected by the state secrets privilege.  In
an April 16, 2008 ruling in the case of M. Afikur Rahman v. Michael
Chertoff, he rejected some of the government's privilege claims and
affirmed others.

     http://www.fas.org/sgp/jud/statesec/rahman041608.pdf

The 1953 Reynolds case that established the Supreme Court precedent on
the state secrets privilege was examined most recently by writer Barry
Siegel in the new book "Claim of Privilege: A Mysterious Plane Crash, A
Landmark Supreme Court Case, and the Rise of State Secrets" (Harper
Collins, June 2008):

     http://barry-siegel.com/ClaimOfPrivilege.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