[net-gold] Secrecy News -- 03/07/11
- From: "David P. Dillard" <jwne@xxxxxxxxxx>
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- Date: Mon, 7 Mar 2011 09:41:29 -0500 (EST)
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Date: Mon, 7 Mar 2011 09:30:02 -0500
From: Steven Aftergood <saftergood@xxxxxxx>
To: Steven Aftergood <saftergood@xxxxxxx>
Subject: Secrecy News -- 03/07/11 (alt list)
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SECRECY NEWS
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from the FAS Project on Government Secrecy
Volume 2011, Issue No. 22
March 7, 2011
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Secrecy News Blog:
http://www.fas.org/blog/secrecy/
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** OVERCLASSIFICATION IS "IRRELEVANT," DRAKE PROSECUTORS SAY
** DOD CONTRACTORS IN AFGHANISTAN AT A RECORD HIGH
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OVERCLASSIFICATION IS "IRRELEVANT," DRAKE PROSECUTORS SAY
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Former National Security Agency official Thomas A. Drake, who was charged
last year with unauthorized retention of classified information about
controversial NSA programs, should not be allowed to argue in court that
overclassification is widespread or that he was engaged in whistleblowing in
the public interest, government attorneys said last week.
In a February 25 pre-trial motion, prosecutors asked the Court "for an order
barring the defense from introducing any evidence, presenting any defense,
or making any argument relating to the legality, constitutionality or
propriety of the rules and regulations governing the disclosure of
classified information, including any opinion that the intelligence
community 'overclassifies' information."
http://www.fas.org/sgp/jud/drake/022511-motion54.pdf
"The government anticipates that the defendant... may claim that the current
classification system is overly inclusive and protects too much information.
Alternatively, the defendant may claim that the current classification
system is ineffectual or illegal and prevents his ability to air allegations
of waste, fraud and abuse to the attention of the public," the motion
stated.
"Any thoughts that the defendant may have had that the current regulatory
scheme overclassifies information is [sic] irrelevant. It does not matter
that the defendant may have believed that the current regulatory scheme
classified too much information. His obligation in protecting classified
information was to work within the clear set of rules governing the
dissemination of potentially classified information."
Prosecutors went on to argue that their motion to exclude all discussion of
overclassification from Mr. Drake's trial was actually in the best interests
of the defendant, because they said any such discussion would reflect badly
on him.
"If anything, the defendant's thoughts that the current classification
system overclassifies information would be incriminatory, not exculpatory,
because that evidence would tend to show that he did not agree with the
clear rules governing the dissemination of classified information and,
therefore, willfully brought classified information home with him."
In a separate motion last week, prosecutors also asked the Court to exclude
any claims that Mr. Drake's alleged actions were driven by a need to inform
the public.
"The government believes that the defendant may seek to argue or introduce
evidence that his conduct was justified or that his claims [about certain
NSA programs] were meritorious. Because of the need to expose NSA waste and
abuse regarding Classified Programs A and B, the [anticipated defense]
argument proceeds, the defendant's possession of classified documents was
necessary, justified, or well-intentioned, and thus non-criminal."
"This Court should reject any attempt to introduce argument or evidence on
these points," prosecutors urged.
http://www.fas.org/sgp/jud/drake/022511-motion53.pdf
Meanwhile, the Drake defense filed several substantial motions of its own
arguing, among other things, that the espionage statute under which Mr.
Drake was charged (18 USC 793e) "is a statute of alarming breadth and little
definition" and that it is a poor fit for the actions he allegedly
committed.
"Mr. Drake engaged in public criticism. He was not motivated by private
financial gain -- he never sold any information. Instead, he was prompting
public debate about waste and inefficiency at NSA.... The Indictment thus
describes speech of the highest First Amendment caliber. The government may
not insulate itself from Mr. Drake's criticism by claiming that the
information related to national security," the defense argued.
http://www.fas.org/sgp/jud/drake/022511-motion52.pdf
In another pending "leak" case, that of former State Department contractor
Stephen Kim, prosecutors last week filed an unyielding rebuttal to several
defense pre-trial motions seeking dismissal of that case on First Amendment
and other grounds.
"To the extent that the defendant's conduct constitutes speech, that speech
is wholly unprotected by the First Amendment," the Kim prosecutors said.
"Speech used willfully to convey national defense information to any person
not entitled to receive it is speech effecting a crime [which is]
undeserving of First Amendment protection."
http://www.fas.org/sgp/jud/kim/030211-response.pdf
Also last week, 22 additional charges were preferred against Pfc. Bradley E.
Manning, including an allegation that he unlawfully downloaded classified
information and did "knowingly give intelligence to the enemy, through
indirect means" in violation of 18 USC 793e and other statutes.
http://www.fas.org/sgp/news/2011/03/manning-030211.pdf
Collectively, these cases embody an unresolved dispute over the proper
understanding of the espionage statutes and their application to the
unauthorized handling and disclosure of classified information.
See also "Despite openness pledge, President Obama pursues leakers" by Josh
Gerstein, Politico, March 7:
http://www.politico.com/news/stories/0311/50761.html
DOD CONTRACTORS IN AFGHANISTAN AT A RECORD HIGH
The number of private security contractors employed by the Department of
Defense in Afghanistan has reached a new record high, according to DoD
statistics in a recently updated report from the Congressional Research
Service.
"In Afghanistan, as of December 2010, there were 18,919 private security
contractor (PSC) personnel working for DOD, the highest number since DOD
started tracking the data in September 2007. The number of PSC personnel in
Afghanistan has more than tripled since June 2009," the CRS report said.
"The United States relies on contractors to provide a wide variety of
services in Afghanistan and Iraq, including armed security. While DOD has
previously contracted for security in Bosnia and elsewhere, it appears that
in Afghanistan and Iraq DOD is for the first time relying so heavily on
armed contractors to provide security during combat or stability
operations."
"Much of the attention given to private security contractors (PSCs) by
Congress and the media is a result of numerous high-profile incidents in
which security contractors have been accused of shooting civilians, using
excessive force, being insensitive to local customs or beliefs, or otherwise
behaving inappropriately.
"Some analysts believe that the use of contractors, particularly private
security contractors, may have undermined U.S. counterinsurgency efforts in
Afghanistan and Iraq," the report said.
See "The Department of Defense's Use of Private Security Contractors in
Afghanistan and Iraq: Background, Analysis, and Options for Congress,"
February 21, 2011:
http://www.fas.org/sgp/crs/natsec/R40835.pdf
Official reporting on the conduct of the war in Afghanistan is grossly
inadequate to inform policymaking or to provide public accountability, wrote
Anthony Cordesman of the Center for Strategic and International Studies in a
recent assessment of available metrics.
"The war in Afghanistan is now in its tenth year. In spite of that fact, the
US, allied countries, the ISAF, and the UN have failed to develop credible
reporting in the progress of the war, provide meaningful transparency on the
problems and challenge it faces, and a meaningful plan for the future.
Moreover, since June 2010, the unclassified reporting the US does provide
has steadily shrunk in content - effectively 'spinning' the road to victory
by eliminating content that illustrates the full scale of the challenges
ahead," Cordesman wrote.
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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:
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Secrecy News is archived at:
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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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