Author Topic: fas.org Federation of American Scientist Secrecy news  (Read 2625 times)

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fas.org Federation of American Scientist Secrecy news
« on: May 13, 2011, 08:20:32 AM »
Secrecy News Blog:  http://www.fas.org/blog/secrecy/


**     IN DRAKE LEAK CASE, GOVT SEEKS TO BLOCK UNCLASSIFIED INFO
**     HOW TO CONDUCT CLASSIFIED DISCOVERY INTERVIEWS
**     F-35 SELECTED ACQUISITION REPORT DISCLOSED
**     PENTAGON PAPERS TO BE OFFICIALLY RELEASED


IN DRAKE LEAK CASE, GOVT SEEKS TO BLOCK UNCLASSIFIED INFO

The government is seeking to limit the disclosure of unclassified
information as well as classified information about the National Security
Agency at the upcoming trial of former NSA official Thomas A. Drake, who is
accused of unlawful retention of classified documents that were allegedly
provided to a reporter.

Under the provisions of the Classified Information Procedures Act (CIPA),
as expected, prosecutors have asked the court to protect certain classified
information from disclosure at trial by proposing substitutions, subject to
court approval.

But in an unprecedented legal maneuver, they said that some unclassified
information concerning NSA should also be kept off the record.  Defense
attorneys told the court that the move was outrageous.

"One month from trial, and one year after the Indictment issued in this
case, the government has asserted, for the first time, an evidentiary
privilege under the National Security Agency Act of 1959 that it claims
authorizes the Court to redact, or insert substitutions for, relevant
unclassified evidence that will be introduced during the upcoming criminal
trial," wrote public defenders James Wyda and Deborah L. Boardman on May
10.  "There is no authority for this unprecedented assertion in the context
of a criminal trial."

    http://www.fas.org/sgp/jud/drake/051011-cipa113.pdf

Prosecutors said their position was legitimate because "NSA possesses a
statutory privilege that protects against the disclosure of information
relating to its activities."  The statute exempts the Agency from any
required "disclosure of the organization or any function of the National
Security Agency...."  Prosecutors said CIPA permits them to invoke this
privilege for unclassified information, along with any other privilege that
might be germane.

    http://www.fas.org/sgp/jud/drake/050911-cipa.pdf

The NSA Act exemption cited by the government is most commonly used in
Freedom of Information Act cases to deny access to unclassified
information.  It has never been used to exclude information in a criminal
case, the defense said.  Even if it were permitted to be invoked in this
case, it requires a detailed affidavit to support its use in each instance
and no such affidavits have been produced.

"Neither CIPA nor the National Security Agency Act confers courts with the
authority to require substitutions for unclassified, relevant evidence in a
criminal case," the defense attorneys said.  They asked the court to block
the move or, failing that, to require the government to identify with
specificity the reasons why disclosure of the unclassified information
would harm national security.

The current pre-trial wrangling in the Drake case illustrates at least two
things.  First, the government is pursuing the matter aggressively at the
tactical level;  it is fighting to win, not just going through the motions.
(The same, of course, may be said of the defense.)  And second, this case
-- and each of the other pending leak prosecutions -- may be of momentous
importance not only to the defendant.  Each proceeding has the potential to
establish new precedents and new procedures that will perturb the current
understanding of the law, and thereby make future leak prosecutions either
easier or harder.


HOW TO CONDUCT CLASSIFIED DISCOVERY INTERVIEWS

In preparation for the trial of Jeffrey A. Sterling, a former CIA employee
who is accused of unauthorized disclosure of classified information,
prosecutors this week wrote to the defendant's attorney explaining how
pre-trial interviews of potential witnesses in the case are to be
conducted.

First of all, "If you intend to discuss classified information during an
interview, the potential witness must possess the requisite security
clearances."  But "You may not rely on the representations of the potential
witness as to the status of that person's clearances," wrote U.S. Attorney
Neil H. MacBride on May 9.  "We will verify whether the potential witness
has the requisite clearance."

    http://www.fas.org/sgp/jud/sterling/050911-letter.pdf

You may not ask "the true identity of covert employees."  You may not
discuss "the background of covert employees."  You may not ask questions
"about intelligence operations other than that which has been disclosed to
you in the discovery materials."

And so on.  "With these restrictions, which we have reviewed with
intelligence officials, we believe that you may conduct interviews with
potential witnesses consistent with the Protective Order previously entered
by the Court."


F-35 SELECTED ACQUISITION REPORT DISCLOSED

The latest annual report to Congress on the F-35 Joint Strike Fighter
Program details the soaring costs and deferred production schedule
associated with the program.  The report, which has not been publicly
released, outlines total program costs from last year as well as
per-aircraft costs and planned annual spending rates.

It's "a useful primer on the Pentagon's most expensive weapons program,"
said one close observer of defense procurement.

A copy was obtained by Secrecy News.  See the 2010 Selected Acquisition
Report (SAR) for the F-35, April 2011:

    http://www.fas.org/man/eprint/F-35-SAR.pdf


PENTAGON PAPERS TO BE OFFICIALLY RELEASED

Forty years after they were famously leaked by Daniel Ellsberg in 1971,
the Pentagon Papers will be officially released next month at the Richard
Nixon Presidential Library.

The National Archives announced this week that it "has identified,
inventoried, and prepared for public access the Vietnam Task Force study,
United States-Vietnam Relations 1945-1967, informally known as 'the
Pentagon Papers'."  As a result, 3.7 cubic feet of previously restricted
textual materials will be made officially available at the Nixon Library on
June 13, the Archives said in a May 10 Federal Register notice.

      http://www.fas.org/sgp/news/2011/05/ppapers.html

While any release of historical records is welcome, the official
"disclosure" of the Pentagon Papers is in fact a sign of disarray in the
government secrecy system.  The fact that portions of the half-century old
Papers remained classified until this year is a reminder that
classification today is often completely untethered from genuine national
security concerns.

On March 28, 2011 the National Declassification Center announced "the
great news that the Office of the Secretary of Defense (OSD) has
declassified the information of interest to them" in the Papers, clearing
the way for next month's public release.

      http://blogs.archives.gov/ndc/?p=82
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