[Intelforum] Secrecy News -- 01/23/12
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from the FAS Project on Government Secrecy
Volume 2012, Issue No. 5
January 23, 2012
Secrecy News Blog: http://www.fas.org/blog/secrecy/
** COURT SAYS REVIEW OF SECURITY CLEARANCE DISPUTE IS "PROHIBITED"
** AFGHANISTAN CASUALTIES, AND MORE FROM CRS
** DOD SUPPORT TO FOREIGN DISASTER RELIEF
** INTELLIGENCE SUPPORT TO MILITARY OPERATIONS
COURT SAYS REVIEW OF SECURITY CLEARANCE DISPUTE IS "PROHIBITED"
A government agency's decision to revoke an employee's security clearance
cannot be reviewed by a federal court even if the decision is based on
ethnic discrimination or religious prejudice or other unconstitutional
grounds, a court said last week.
Judge James C. Cacheris of the Eastern District of Virginia dismissed a
lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National
Geospatial-Intelligence Agency (NGA). Mr. Hegab alleged that his security
clearance had been revoked by NGA "based solely on [his] wife's religion,
Islam, her constitutionally protected speech, and her association with, and
employment by, an Islamic faith-based organization." ("Clearance Lost Due
to Anti-Islamic Prejudice, Lawsuit Says," Secrecy News, October 6, 2011)
The NGA disputed the claim and moved to dismiss the lawsuit.
Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in
opposition on December 14.
But in his January 19 opinion, Judge Cacheris said that it didn't matter
even if the plaintiff's allegations were true, because the court lacked the
authority to review the underlying bases of the dispute.
"A determination of whether Hegab’s security clearance was revoked due
to legitimate national security concerns or, as Hegab alleges,
constitutionally impermissible bases would necessarily require a review of
the merits of NGA’s decision. Absent clear congressional directive, which
Hegab fails to identify, such a review is flatly prohibited by Egan and
Fourth Circuit precedent," Judge Cacheris wrote.
"Egan" here refers to the 1988 U.S. Supreme Court decision in the case of
Department of the Navy v. Egan, which has often been invoked in support of
broad and unreviewable executive branch authority in national security
A critique of Egan and its subsequent application was presented by
constitutional scholar Louis Fisher, then of the Law Library of Congress,
in "Judicial Interpretations of Egan," November 13, 2009.
AFGHANISTAN CASUALTIES, AND MORE FROM CRS
New or updated reports from the Congressional Research Service that have
not been made readily available to the public include the following.
"Afghanistan Casualties: Military Forces and Civilians," January 18, 2012:
"FY2012 National Defense Authorization Act: Selected Military Personnel
Policy Issues," January 5, 2012:
"Spectrum Policy in the Age of Broadband: Issues for Congress," January 5,
"The Federal Bureau of Investigation and Terrorism Investigations,"
December 28, 2011:
"Economic Downturns and Crime," December 19, 2011:
DOD SUPPORT TO FOREIGN DISASTER RELIEF
The Department of Defense has prepared a guide for military personnel who
are engaged in foreign disaster relief operations, an endeavor which arises
with some frequency.
"The U.S. Government (USG) responds to approximately 70-80 natural
disasters across the globe each year. In approximately 10-15 percent of
these disaster responses, the Department of Defense (DoD) lends support to
the overall USG effort."
"DoD disaster assistance can range from a single aircraft delivering
relief supplies, to a fullscale deployment of a brigade-size or larger task
force. Though the overall percentage of disasters requiring DoD support is
relatively small, these disasters tend to be crises of the largest
magnitude and/or the greatest complexity."
The new guide "offers an overarching guide and reference for military
responders in disaster relief operations." See "Department of Defense
Support to Foreign Disaster Relief," GTA-90-01-030, 13 July 2011 (large
INTELLIGENCE SUPPORT TO MILITARY OPERATIONS
The Joint Chiefs of Staff have produced updated doctrine on intelligence
support to military operations. The new doctrine reflects changes in
intelligence organizations, roles and missions.
Among other things, the new publication introduces the term
"biometric-enabled intelligence" or BEI. "BEI is derived from the
collection, processing, and exploitation of biometric signatures; the
contextual data associated with those signatures; and other available
information that answers a commander's or other decision maker's
information needs concerning persons, networks, or populations of
See Joint Publication 2-01, "Joint and National Intelligence Support to
Military Operations," 05 January 2012:
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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