Thursday, September 8, 2011

European Council Offers Rebuke to U.S. Secrecy Policy



European Council Offers Rebuke to U.S. Secrecy Policy

September 8th, 2011 by Steven Aftergood

A draft resolution (pdf) prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

“In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe. It is to be debated by the full Assembly next month. See “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations,” provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA. The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

“The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions,” the draft resolution said.

The document pointed approvingly to Canada’s response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime. The government of Canada apologized for the episode and provided financial compensation to Arar. But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the “state secrets” privilege.

“As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms,” the draft resolution said. The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

“We are confronted with a real cult of secrecy,” the document said. “It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency.”

The resolution praised the role of WikiLeaks in publishing “diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees.” But it also stated that “It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel” — a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several “basic principles for judicial and parliamentary scrutiny of the secret services” in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, it said, “Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets.”

The Vast Majority of 911 Materials Remains Secret for No Apparent Reason

The Raw Story

Military officials ignored Cheney’s 9/11 shoot-down order

By Stephen C. Webster
Thursday, September 8th, 2011 -- 11:07 am

Newly published audio this week reveals that Vice President Dick Cheney's infamous Sept. 11, 2001 order to shoot down rogue civilian aircraft was ignored by military officials, who instead ordered pilots to only identify suspect aircraft.

That revelation is one of many in newly released audio recordings compiled by investigators for the 9/11 Commission, published this week by The Rutgers Law Review. Featuring voices from employees at the Federal Aviation Administration (FAA), North American Aerospace Defense Command (NORAD) and American Airlines, the newly released multimedia provides a glimpse at the chaos that emerged as the attack progressed.

Most striking of all is the revelation that an order by Vice President Dick Cheney was ignored by the military, which saw his order to shoot down aircraft as outside the chain of command. Instead of acknowledging the order to shoot down civilian aircraft and carrying it out, NORAD ordered fighters to confirm aircraft tail numbers first and report back for further instructions.

Cheney's order was given at "about 10:15" a.m., according to the former VP's memoirs, but the 9/11 Commission Report shows United flight 93 going down at 10:06 a.m. Had the military followed Cheney's order, civilian aircraft scrambling to get out of the sky could have been shot down, exponentially amplifying the day's tragedy.

Far from sending fighters to chase after the hijacked aircraft, as Bush administration officials have repeatedly said they did, the new audio tapes paint a picture of bedlam and unpreparedness.

The situation was so chaotic, military officials received the exact location of one of the aircraft that hit the World Trade Center towers just nine minutes before impact. It even took a military official calling the FAA some 30 minutes after American Airlines Flight 77 went off course before the nation's defense apparatus began scrambling. Moments later the jet is said to have slammed into the Pentagon.

Despite these latest disclosures, the vast majority of materials gathered during the investigation of 9/11 remains a secret, even over the wishes of the 9/11 commissioners. Among that information is a 30-page summary of the commission's interview with President George W. Bush and Vice President Cheney; black box data; minutes from a secret, high-level "continuity of government" meeting; and information on America's overseas intelligence-gathering on al Qaeda.

Withheld from the audio released by Rutgers was a high-level meeting held by top administration officials, where they discussed continuity of government measures to be implemented if the president were to be killed or a mass casualty event were to occur. In Cheney's memoir, he claims to have ordered a staffer to hang up on that meeting when a technical glitch caused a degradation in audio quality. Instead of going directly there to participate in discussions about how to sustain the government, Cheney decided to watch television news.

9/11 Commission Chairman Thomas Kean has said most of the investigation's materials are classified for no apparent reason, and urged that the National Archives release the 9/11 files to the public as soon as possible. He's also suggested that the Central Intelligence Agency (CIA) tried to impede the investigation when it turned towards al Qaeda intelligence gathering methods.

As many as 92 tapes of terror war captives being tortured by CIA operatives were later destroyed. Officials suggested these recordings depicted torture sessions with terrorism suspects Abu Zubaydah and Abd al-Nashiri. Along with the tapes, detailed records of the CIA's so-called "torture flights," showing the planes, destinations and even the passengers, were also destroyed.

Attorney General Eric Holder announced in June that after a lengthy investigation, a probe of the CIA's interrogations during the Bush-era would not proceed.

This video is from ABC News, broadcast Thursday, Sept. 8, 2011.


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Sunday, February 20, 2011

Senate Bill Would Make Leaks a Felony

Secrecy News

Senate Bill Would Make Leaks a Felony

February 17th, 2011 by Steven Aftergood

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information. The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases). These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information. The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin. “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said. “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.” It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.” The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified. (The bill does not distinguish between “information” and “records.”) This means that the government would not have to prove that the leaked information was properly classified; the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure. Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation. It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks. Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable. In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message. “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.

Secrecy News

Senate Bill Would Make Leaks a Felony

February 17th, 2011 by Steven Aftergood

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information. The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases). These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information. The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin. “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said. “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.” It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.” The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified. (The bill does not distinguish between “information” and “records.”) This means that the government would not have to prove that the leaked information was properly classified; the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure. Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation. It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks. Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable. In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message. “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.