Author Archives: susan.goelz

Fall Tour Wraps Up; Government – Press Tension Continues

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The Fall 2007 tour of Top Secret, which opened in Hampton, Va., visited universities across the country, including Stanford, and concluded with a performance in Omaha, Nebraska — picking up critical acclaim along the way. Preparations for the 2008 tour are underway, and the kick-off for the second leg of the national tour will be at Wake Forest University on Jan. 17.

But as the tour closed, revelations surfaced about the New York Times, once again withholding information at the request of government officials: “The New York Times has known details of the secret program for more than three years… The newspaper agreed to delay publication of the article after considering a request from the Bush administration, which argued that premature disclosure could hurt the effort to secure the weapons…. Early this week, the White House withdrew its request that publication be withheld, though it was unwilling to discuss details of the program.”

Does this represent another example of the Times holding the story to prevent upsetting a political balance, as it has been accused of doing with the NSA wiretapping story, or is it an example, as piece author David Sanger claims, of the Times holding the story only until as long as necessary for security matters. The discussions around this and other topics will be dynamic as the 2008 tour gets underway.

Nebraska Symposium Success

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The University of Nebraska ‘Echoes of Project X’ Symposium was a huge success in Lincoln this week. Both pre- and post-production discussions were hosted by playwright Geoffrey Cowan and events included a discussion with former New York Times columnist Anthony Lewis, Thomas Jefferson Center director Robert O’Neil, UNL Journalism professor John Bender and UNL law professor Eric Berger. Washington Post reporter Walter Pincus made remarks, and it was capped off by an address by Daniel Ellsberg. Video of the event is available here.

Excitement Builds for Tour; Shield Law Heads to Senate

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As the national tour of Top Secret moves from Hampton, Va. and  Collegeville, Minn., excitement is building in upcoming locations, such as Oxford, Ohio , University of Nebraska,  Scottsdale, Ariz.,  Tucson, Ariz., and the University of Arkansas.  At the same time the production is taking off at full steam, the U.S. House debated and passed a reporter’s shield bill, which now makes its way to the Senate. The Senate Judiciary Committee recently approved its own bill, and now the reconciliation process will take place despite White House promises to veto. The Citizen Media Law Project analyzes the merits of each bill.

“It’s the Secrecy, Stupid”

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“It’s the Secrecy, Stupid” was the title of Yale Law School Professor Jack Balkin‘s prominent legal blog post about the FISA-NSA wiretapping reform bills that now seem to have passed their hurdles in the Senate, having been favorably reported out of the Select Committe on Intelligence. The reforms, would give retro-active immunity to telecommunication companies, who, as the Washington Post revealed (but the companies themselves refuse to confirm or deny) engaged in wiretapping even before receiving explicit congressional authorization to do so. The proposals have been widely criticized by legal experts, but seem likely to pass Congress and be signed into law this week. UPDATE: Harper’s provides an insightful analysis of Balkin’s blog post and Marty Lederman‘s reply in light of the recent refusal by National Intelligence Director McConnell to release National Intelligence Estimates. Meanwhile, even Congressional Committees are having difficulty obtaining information about the administration’s policies on the telecommunication immunity measures.

Release of So-Called “Torture Memos” Shifts Debate

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The leak of the latest in the line of “Torture Memos” — written legal opinions in which the Department of Justice tries to give justification for its approving stance on the Orwellian- named ‘enhanced interrogation techniques‘ — has been able to shift the political debate in Washington as the new attorney general nomination is considered. The “Bradbury Memos” , named for the Justice Department official who authorized their promulgation, have created a backdrop that sounds in echo of the anti-totalitarian classic “Farenheit 451”. Neither calls for their release nor the appeal to national conscience has led to transparency or retraction.  Coupled with new disclosures that raise questions about the CIA’s own inspector general and his department, the secrecy that has for years gripped so tightly by the C.I.A., and now encouraged by the White House, is seemingly strangling only itself more strongly than the enemies it is trying to overcome.

New Nixon Tapes Released

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The Miller Center for Public Affairs at the University of Virginia has just released an amazing new set of presidential recordings from the Nixon years, including his initial reaction to the Pentagon Papers stories. The remarkably revealing conversations between Nixon and his top aides, discussing the newspaper’s scoop and their response to it, are available in both sound recording and transcript form. Slate editor Jack Schafer also points out the personal viciousness targeted at Katharine Graham by Nixon and J. Edgar Hoover (going so far as to call her an ‘old bag’) on the day that the Supreme Court rules.

House Judiciary Holds FISA Hearing

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The House Judiciary Committee held a hearing on Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights which featured testimony by Pentagon Papers staff director and chief organizer Mort Halperin expressing his strong reservation about the “Protect America Act“, calling its ambiguity and vagueness “simply unacceptable and a threat to both our liberty and our security.”

Former CIA Director Hayden Addresses CFR

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Secrecy News filed this report on General Hayden’s address:

Unauthorized disclosures of classified information in the press led to the imprisonment of a CIA source and other damaging consequences, said Central Intelligence Agency Director Michael Hayden in a speech last week. “Some say there is no evidence that leaks of classified information have harmed national security. As CIA Director, I’m telling you there is, and they have,” Hayden told the Council on Foreign Relations. “Let me give you just two examples:  In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources, whose family was also endangered. The revelations had an immediate, chilling effect on our ability to collect against a top-priority target.” “In another, a spate of media reports cost us several promising counterterrorism and counterproliferation assets. Sources not even involved in the exposed operation lost confidence that their relationship with us could be kept secret, and they stopped reporting.” “More than one foreign service has told us that, because of public disclosures, they had to withhold intelligence that they otherwise would have shared with us. That gap in information puts Americans at risk.” “Those who are entrusted with America’s secrets and break that trust by divulging those secrets are guilty of a crime. But those who seek such information and then choose to publish it are not without responsibilities.”

In his comments on unauthorized disclosures, Director Hayden did not address wrongful withholding of information, and did not acknowledge any reasons why American might be skeptical of CIA disclosure policies. “CIA acts within a strong framework of law and oversight,” he said. While leaks have been a perennial problem from the government’s point of view, it does not follow that new legislation to combat them is a fitting solution. “I am not aware of a single case involving the unauthorized disclosure of classified information that would have been prosecuted but could not be because of the lack of statutory coverage,” said Attorney General John Ashcroft in testimony prepared for the Senate Intelligence Committee in 2001. The Ashcroft testimony, dated September 5, 2001, represents a missing link between the testimony of Janet Reno on the same subject on June 14, 2000, and a subsequent report to Congress on leaks that was submitted by Mr. Ashcroft in October 2002. The testimony was approved by the White House Office of Management and Budget, according to a handwritten notation on the document, but the scheduled Intelligence Committee hearing was cancelled and the Ashcroft testimony was never delivered. A copy of the text was obtained under the Freedom of Information Act by Michael Ravnitzky.

White House Office Exempt from FOIA, Justice Dept. Argues

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The August 23 Washington Post carried a story detailing how the government, in the course of defending a lawsuit filed by the Center for Responsibility and Ethics in Washington, has claimed that in addition to the Executive Office of the President, the Office of the Vice-President, now the Office of Administration at the White House is also exempt from FOIA reporting responsibility, even though that agency, which is responsible for technology, has answered numerous FOIA requests in the past and even has an appointed FOIA compliance officer.

The basis of the lawsuit was a CREW report that White House Officials were using non-government e-mail addresses to avoid official disclosure requirements, such as accounts provided to former Presidential Advisor Karl Rove by the Republican National Committee. CREW charges that five million e-mails have been lost by the Office of Administration.

DC Circuit State Secrets Decision

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Secrecy News provides this report on a recent DC Circuit decision on the state secrets doctrine:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege. The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma. The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004. But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case. “In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said. The Court presented its ruling as a straightforward application of established principles, including fairness to the parties. But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege. “The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.” The case was remanded to the district court level for further deliberation. See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007. Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.” The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege. A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.