[net-gold] Secrecy News -- 08/26/11

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Date: Fri, 26 Aug 2011 14:33:26 -0400 (EDT)

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Date: Fri, 26 Aug 2011 12:06:05 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 08/26/11

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SECRECY NEWS

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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 82
August 26, 2011

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Secrecy News Blog:

http://www.fas.org/blog/secrecy/

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**     GOVT ASKS COURT TO RECONSIDER SUBPOENA FOR REPORTER RISEN

**     GOVT WILL NOT DECLASSIFY 2001 OPINION ON SURVEILLANCE

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GOVT ASKS COURT TO RECONSIDER SUBPOENA FOR REPORTER RISEN

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Prosecutors in the case of former CIA officer Jeffrey Sterling, who is
accused of leaking classified information to author James Risen, have asked
a federal court to reconsider the July 29 ruling that narrowly limited
Risen's obligation to testify at the trial of Mr. Sterling. ("Reporter Risen
Will Not Have to Identify Source in Leak Trial," Secrecy News, August 1.)

"There is no equivalent for Risen's eyewitness testimony," prosecutors wrote
in an August 24 motion for reconsideration, arguing that Risen's
participation was indispensable to the prosecution of Mr. Sterling. "There
is no non-testimonial direct evidence in this case that can establish what
Risen can."

        http://www.fas.org/sgp/jud/sterling/082411-recon.pdf

"There are no recorded telephone calls in which Sterling discloses
classified information to Risen, nor are there emails in which Sterling
discloses the same.  Had there been such recordings or emails, that evidence
would have been disclosed... and the government certainly would have
provided such discovery after indictment.  There simply is no such
evidence," the prosecution motion said.

The motion specifically asked the court to affirm that Mr. Risen must not
only authenticate the reporting in his book, for which Mr. Sterling was
allegedly a source, but that he must also authenticate the original book
proposal that he submitted to his publisher, a point that was not addressed
in the court's July 29 ruling.

"Risen's book proposal identified his sources as 'CIA officers involved in
the operation'.... In addition, the book proposal contains very specific,
classified information that the defendant and very few others knew, thus
tending to prove that the defendant was the source of the information," the
motion said.

More broadly, prosecutors wrote, "The government has a compelling interest
in prosecuting government employees who leak classified, national defense
information.  Tow of the most important duties of the Executive Branch are
prosecuting violations of federal criminal laws and protecting the nation's
security secrets.  Thus, there are few scenarios where the government's
interests can be more profound and compelling than a criminal prosecution
involving national security interests."

GOVT WILL NOT DECLASSIFY 2001 OPINION ON SURVEILLANCE

The Department of Justice refused this month to declassify a 2001 legal
Office of Legal Counsel opinion by John C. Yoo concerning the legality of
the Bush Administration's warrantless surveillance program.

The redacted information in the OLC opinion "is classified, covered by
non-disclosure provisions contained in other federal statutes, and is
protected by the deliberative process privilege," wrote Paul P. Colborn,
Special Counsel at OLC.

        http://www.fas.org/sgp/news/2011/08/aid-olc.pdf

The document had been requested by researcher Matthew M. Aid, who writes on
NSA and surveillance policy.

Eight partial sentences from the 21 page opinion were released, including a
previously declassified assertion that "unless Congress made a clear
statement in FISA that it sought to restrict presidential authority to
conduct warrantless searches in the national security area -- which it has
not -- then the statute must be construed to avoid such a reading."

That claim alone has drawn criticism from some members of Congress.

"I cannot reconcile the plain language of FISA that it is the exclusive
procedure for electronic surveillance of Americans with the OLC opinion
saying Congress didn't say that," Sen. Sheldon Whitehouse told the
Washington Post in a May 23, 2008 story ("Sentence in Memo Discounted FISA"
by Robert Barnes). "Once again, behind the veil of secrecy, OLC appears to
have cooked up extravagant or misguided legal theories which would never
survive the light of day," he said.

"The 2001 statement addressing FISA does not reflect the current analysis of
the department," wrote Justice official Brian A. Benczkowski, quoted in the
Post.

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_______________________________________________

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Secrecy News is written by Steven Aftergood and published by the Federation
of American Scientists.

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

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to
     http://www.fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@xxxxxxx

Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

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_______________________

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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@xxxxxxx
voice:  (202) 454-4691
twitter: @saftergood

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[net-gold] Secrecy News -- 08/26/11

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