[net-gold] Secrecy News -- 09/13/10
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 13 Sep 2010 09:54:05 -0400 (EDT)
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Date: Mon, 13 Sep 2010 09:39:43 -0400
From: Steven Aftergood <saftergood@xxxxxxx>
To: saftergood@xxxxxxx
Subject: Secrecy News -- 09/13/10 (alt list)
SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 72
September 13, 2010
Secrecy News Blog:
http://www.fas.org/blog/secrecy/
** STATE SECRETS VS. THE RULE OF LAW
** THE NEW NOBILITY: RUSSIA'S SECURITY STATE
STATE SECRETS VS. THE RULE OF LAW
The inherent tension between the state secrets privilege and the rule of law
reached the breaking point last week when an appeals court dismissed the
claims of several persons who said they were illegally transported and
tortured through a CIA "extraordinary rendition" program. They would not be
permitted to litigate their case, the court decided, because to do so would
place "state secrets" at risk.
"This case presents a painful conflict between human rights and national
security," the 9th circuit court of appeals noted in its September 8 opinion
in Mohamed v. Jeppesen Dataplan, and by a 6-5 majority the judges determined
that security considerations would take precedence.
http://www.fas.org/sgp/jud/statesec/jep-090810.pdf
"We have thoroughly and critically reviewed the government's public and
classified declarations and are convinced that at least some of the matters
it seeks to protect from disclosure in this litigation are valid state
secrets, 'which, in the interest of national security, should not be
divulged'," according to the majority opinion.
At the same time, the majority acknowledged, "Denial of a judicial forum
based on the state secrets doctrine poses concerns at both individual and
structural levels. For the individual plaintiffs in this action, our
decision forecloses at least one set of judicial remedies, and deprives them
of the opportunity to prove their alleged mistreatment and obtain damages.
At a structural level, terminating the case eliminates further judicial
review in this civil litigation, one important check on alleged abuse by
government officials and putative contractors."
For these reasons, "Dismissal at the pleading stage" as in this case "is a
drastic result and should not be readily granted." Yet grant it the court
did.
But the majority seemed conflicted and apologetic about its own ruling. It
ordered the government to pay the parties' costs, and it devoted several
speculative paragraphs to identifying potential "non-judicial remedies" that
might be available to the plaintiffs. Perhaps Congress could investigate
the matter, the court weakly noted, or maybe pass legislation on behalf of
the plaintiffs.
And just because the court ruled against the plaintiffs, the majority
suggested, that "does not preclude the government from honoring the
fundamental principles of justice" and providing reparations to the
plaintiffs anyway.
But these suggestions range from "impractical" to "absurd," five dissenting
judges wrote. "Permitting the executive to police its own errors and
determine the remedy dispensed would not only deprive the judiciary of its
role, but also deprive Plaintiffs of a fair assessment of their claims by a
neutral arbiter."
Attorney General Eric Holder's September 23, 2009 policy statement on the
state secrets privilege did hold out the possibility of seeking Inspector
General review of allegations of misconduct whose adjudication was blocked
by the use of the state secrets privilege:
"If the Attorney General concludes that it would be proper to defend
invocation of the privilege in a case, and that invocation of the privilege
would preclude adjudication of particular claims, but that the case raises
credible allegations of government wrongdoing, the Department will refer
those allegations to the Inspector General of the appropriate department or
agency for further investigation...." (section 4C).
http://www.fas.org/sgp/news/2009/09/ag092309.pdf
Given the court's extended discussion of non-judicial remedies, this case
would seem to be a fitting subject for an Inspector General investigation
under the 2009 Justice Department policy. But it could not immediately be
learned if the Department has made such a referral to an agency Inspector
General in this or any other state secrets case.
"The state secrets doctrine is a judicial construct without foundation in
the Constitution, yet its application often trumps what we ordinarily
consider to be due process of law," the five dissenting judges wrote. "This
case now presents a classic illustration."
THE NEW NOBILITY: RUSSIA'S SECURITY STATE
"The Soviet police state tried to control every citizen in the country. The
new, more sophisticated Russian [security] system is far more selective than
its Soviet-era counterpart; it targets only those individuals who have
political ambitions or strong public views." That's what Andrei Soldatov
and Irina Borogan discover in "The New Nobility," their impressive new book
on the resurgence of Russia's security services in the post-Cold War era.
http://amazon.com/New-Nobility-Restoration-Security-Enduring/dp/1586488023
Soldatov and Borogan, Russian journalists who have produced some of the
boldest reporting on the subject over the past decade, are also the creators
and editors of Agentura.ru, a pioneering web site devoted to public interest
research on Russian intelligence policy and related matters.
http://www.agentura.ru/english/
In "The New Nobility," they present many of the decisive episodes in the
recent history of the FSB, the primary Russian security service, from the
2002 Moscow theater siege, to the 2004 Beslan school massacre, the war in
Chechnya, and more. Overall they present a picture of a security service of
increasing power and influence, uneven competence -- but virtually no
accountability to parliament or the public.
"The Soviet KGB was all-powerful," Soldatov and Borogan write, "but it was
also under the control of the political structure: The Communist Party
presided over every KGB section, department, and division. In contrast, the
FSB is a remarkably independent entity, free of party control and
parliamentary oversight...."
The book is based on the authors' original reporting, which itself is a
demonstration of unusual courage and commitment. A reader soon loses track
of the number of times their computers are seized by authorities, how often
their papers' web servers are confiscated, and how many times they are
summoned for interrogation or even charged with crimes based on their
reporting. Yet they persist.
Their book is full of remarkable observations. For example:
* In 2006, the FSB organized a competition "for the best literary and
artistic works about state security operatives."
* The history of Moscow's Lefortovo prison has never been documented.
"Even the prison's design [in the shape of the letter K] remains a mystery."
* The Russian security services in Chechnya have made extensive use of
the tactic known as "counter-capture," which involves seizing the relatives
of suspected terrorists in order to induce them to surrender.
Fundamentally, the authors contend, Russia's FSB has gone astray by acting
as an agent of state authority instead of representing the rule of law. "In
today's Russia,... the security services appear to have concluded that their
interests, and those of the state they are guarding, remain above the law."
An American reader may ponder the similarities and differences presented by
U.S. security services.
"The New Nobility: The Restoration of Russia's Security State and the
Enduring Legacy of the KGB" by Andrei Soldatov and Irina Borogan is being
published this month by Public Affairs Books.
"To those following the increasingly hostile environment for journalists in
Russia, Soldatov's career is a curiosity," according to an internal profile
of him prepared by the DNI Open Source Center in 2008. "Despite being
questioned and charged by the FSB on several occasions, Soldatov has
continued to cover hot-button issues such as corruption, security service
defectors, and the increasing role of the special services in limiting free
speech in Russia."
http://www.fas.org/irp/dni/osc/soldatov.html
The New York Times featured Agentura.ru in "A Web Site That Came in From the
Cold to Unveil Russian Secrets" by Sally McGrane, December 14, 2000.
http://www.nytimes.com/2000/12/14/technology/14SPYY.html
_______________________________________________
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/
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Support the FAS Project on Government Secrecy with a donation:
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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
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