Category Archives: Secrecy in governance

Discovering secret dockets

Discovering secret dockets

http://www.rcfp.org/secret-justice-secret-dockets/discovering-secret-dockets

Reporters Committee for Freedom of the Press

Reporters check court dockets to find out what cases have been filed in courts across the country. The docket reveals the case number assigned by the court, the parties’ names, and a brief entry of each document filed or action taken in the case. Normally, all of this information is public record and can be obtained either from the court clerk’s office, the court’s public inquiry computer terminals, the court’s Web site, or through PACER, an electronic public access service where federal court docket information can be accessed for a fee. The information on the docket is evidence that a particular case exists and allows someone to track the case through the judicial system.

According to a survey by The Reporters Committee for Freedom of the Press for this guide, federal courts and many state courts allow for “super-secret” cases, which never appear on the public docket or are hidden using pseudonyms, such as “Sealed v. Sealed” or “John Doe v. Jane Doe.” Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.

Terrorism “outside the orbit”

The most recent examples of secret dockets involve cases against accused terrorists. On May 1, Iyman Faris pleaded guilty to providing material support to al Qaida, including researching ultralight airplanes, procuring lightweight sleeping bags, plane tickets and cell phones, and assisting in a plan to destroy the Brooklyn Bridge for the terrorist organization. But his arrest, indictment and, ultimately, his plea bargain with the Justice Department proceeded in absolute secrecy.

Faris’ case may have remained a secret were it not for two Newsweek reporters, Michael Isikoff and Mark Hosenball, who discovered through intelligence documents that Faris was suspected of working for key al Qaida operative Khalid Shaikh Mohammed. In a June 18, 2003 article, the reporters speculated whether Faris was on the run, had disappeared or had been captured. For individuals such as Faris, there is “a new category that seems to be evolving outside the orbit of the criminal-justice system,” the Newsweek reporters wrote.

Only after Newsweek reported on Faris did Attorney General John Ashcroft reveal that Faris had pleaded guilty to terrorist charges more than a month earlier. The Justice Department denied that the Newsweek story had anything to do with Ashcoft’s June 19 press conference in which he first announced the capture of Faris and his plea agreement.

“Our need to keep it secret had dissipated,” said Mark Corallo, a spokesperson for the Justice Department.

The Justice Department will not divulge how many other individuals are being held in secret on terrorism charges. “We have been very consistent in not discussing exact numbers,” Corallo said. “Even though it seems like innocuous information, it is not.”

Corallo claimed that providing numbers of individuals arrested on terrorism charges would “give a road map to the terrorists.” Terrorist organizations could determine how many terrorists the Justice Department has captured and monitor the government’s progress, he explained.

But the government never has explained how a terrorist operative could be in U.S. control for months and why the terrorist organization with which he is allegedly involved could not determine that its operative was missing, said Lee Gelernt, an attorney for the American Civil Liberties Union.

This debate raises the question: Is such secrecy really needed to protect national security or is it being used to protect the government from scrutiny?

It was only through a court clerk’s mistake that the Miami Daily Business Review discovered the case of Mohamed Kamel Bellahouel, who apparently filed suit in a federal court in Florida against Monica S. Wetzel, a former warden at the Federal Correctional Institution in South Miami-Dade County.

According to the Business Review, Bellahouel “was once mistakenly suspected of involvement with terrorists” and appears to have filed a petition seeking freedom from unlawful imprisonment.However, the public docket will not reveal that Bellahouel’s case even exists or why his case is pending before the U.S. Court of Appeals in Atlanta (11th Cir.).

While no one knows how many cases such as Bellahouel’s exist, secret dockets are not limited to cases involving terrorism.

Secret crimes

Attorneys for alleged Columbian drug trafficker Fabio Ochoa-Vasquez discovered an entire system of “dual docketing” in U.S. District Court in Florida that deprived them of information for their client’s defense.

Ochoa alleges that a government informant bribed him and that for $30 million he would receive no more than a five-year sentence. Ochoa also alleges that another government informant told him that a U.S. program existed in which drug traffickers could pay their way to a reduced sentence and that two traffickers, Nicholas Bergonzoli and Julio Correa, had already participated in the program.

Even though Bergonzoli pleaded guilty to importing cocaine and an attorney acknowledged representing Correa in “a cooperation agreement with the government,” the Florida federal court docket does not reflect that these cases even exist, according to attorneys for Ochoa, who in May 2003 filed a brief requesting the elimination of the “dual docketing” system and disclosure of sealed proceedings to the Eleventh Circuit.

Not only does this type of secrecy deprive Ochoa of his due process rights, it is a violation of the First Amendment and common law rights of access to judicial proceedings, Ochoa’s attorneys argued.

The use of secret dockets by the federal Southern District of Florida conflicts with a decision issued by the Eleventh Circuit ten years earlier in United States v. Valenti. In that case, the government charged criminal defense attorney Charles Corces and state prosecutor John Valenti with conspiring to obtain favorable treatment for criminal defendants who paid Valenti. After the two were indicted, the state dismissed the case; however, a secret docket prevented the public from learning about closed pretrial bench conferences and the filing of in-camera pretrial motions. A reporter from the St. Petersburg Times learned about the secret docket when he observed a closed-bench conference and sought access to the transcripts.

On appeal to the Eleventh Circuit, the court held that the “maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings.”

According to Ochoa’s attorneys, this holding “is consistent with every circuit that has decided a similar question.”

However, while the law disfavors secret dockets, they are still used by federal and state courts to hide sealed cases. When an entire case is sealed, rather than individual documents, federal courts either remove the case from the public docket or replace the parties’ names with anonymous pseudonyms such as “Sealed v. Sealed.” At least 46 U.S. district courts across the country allow for these types of secret docketing procedures. Such a system makes it virtually impossible for the public and press to know what types of cases are being sealed or to challenge the constitutionality of the sealing orders.

– See more at: http://www.rcfp.org/secret-justice-secret-dockets/discovering-secret-dockets#sthash.bqBpqkb9.dpuf

Digital “False Flag” operations by UK services

Exclusive: Snowden Docs Show UK Spies Attacked Anonymous, Hackers

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe

http://www.strategic-culture.org/news/2014/11/20/dutch-government-refuses-to-reveal-secret-deal-into-mh17-crash-probe.html

Dutch government refuses to reveal ‘secret deal’ into MH17 crash probe
EDITOR’S CHOICE | 20.11.2014

The Dutch government has refused to reveal details of a secret pact between members of the Joint Investigation Team examining the downed Flight MH17. If the participants, including Ukraine, don’t want information to be released, it will be kept secret.

The respected Dutch publication Elsevier made a request to the Dutch Ministry of Security and Justice under the Freedom of Information Act to disclose the Joint Investigation Team (JIT) agreement, along with 16 other documents. The JIT consists of four countries – the Netherlands, Belgium, Australia and Ukraine – who are carrying out an investigation into the MH17 disaster, but not Malaysia. Malaysian Airlines, who operated the flight, has been criticized for flying through a war zone.

Part of the agreement between the four countries and the Dutch Public Prosecution Service, ensures that all these parties have the right to secrecy. This means that if any of the countries involved believe that some of the evidence may be damaging to them, they have the right to keep this secret.

“Of course [it is] an incredible situation: how can Ukraine, one of the two suspected parties, ever be offered such an agreement?” Dutch citizen Jan Fluitketel wrote in the newspaper Malaysia Today.

Despite the air crash taking place on July 17 in Eastern Ukraine, very little information has been released about any potential causes. However, rather than give the public a little insight into the investigation, the Dutch Ministry of Security and Justice is more worried about saving face among the members of the investigation.

“I believe that this interest [international relations] is of greater importance than making the information public, as it is a unique investigation into an extremely serious event,” the Ministry added, according to Elsevier.

Other reasons given for the request being denied included protecting investigation techniques and tactics as well as naming the names of officials who are taking part in the investigation. The Ministry said it would be a breach of privacy if they were revealed. “If the information was to be released then sensitive information would be passed between states and organizations, which would perhaps they would be less likely to share such information in the future,” said the Ministry of Security and Justice.

Dutch MP Pieter Omtzigt, who is a member of the Christian Democratic Party, has made several requests for the information to be released to the public.

“We do not know what the Netherlands has committed itself to. The government neither published the agreement when we asked for it, nor did it show it to parliament,” he said in reaction to the ministry’s decision. “It is perfectly normal that the Netherlands cooperate with other countries in this complex investigation. Yet they even kept the existence of the agreement secret a first and that was unnecessary.”

Journalists walk behind parts of the Malaysia Airlines plane Flight MH17 as Dutch investigators (unseen) arrive near at the crash site near the Grabove village in eastern Ukraine on November 11, 2014 (AFP Photo)

Malaysia is the only country to have directly negotiated with the anti-Kiev militias in the East of Ukraine, while the country’s Ambassador to the Netherlands said he was unhappy that Malaysia had not been included within the JIT. Dutch Prime Minister Mark Rutte flew to Kuala Lumpur on November 5, but Malaysia says it still did not receive an invitation to join.
“We must first be included in the JIT, otherwise it would be hard for us to cooperate in the investigation. The parties inside the investigation must include us in the team, right now we are just a participant,” said the Malaysian Inspector-General of Police Khalid Abu Bakar in Kuala Lumpur on Wednesday, which was reported by the New Straits Times.
A preliminary report by the Dutch Safety Board, which was released September said the MH17 crash was a result of structural damage caused by a large number of high-energy objects that struck the Boeing from the outside.
Dutch investigators added that “there are no indications” that the tragedy was triggered “by a technical fault or by actions of the crew.”
RT

Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council

Constructing the secret EU state: “Restricted” and “Limite” documents hidden from view by the Council
http://www.statewatch.org/analyses/no-240-restricted-documents.pdf

– Over 117,000 “RESTRICTED” documents produced or handled by the Council since 2001 but only 13,184 are listed in its public register of documents

– 103,839 “RESTRICTED” documents not listed in the Council’s public register due to the “originators” right of veto?

– The Council seeks to stop the publication of unreleased “LIMITE” documents, which are defined as “sensitive unclassified documents”

– The Commission has failed to implement the Lisbon Treaty to ensure that all legislative documents are made public as they are produced  – this means that 60% of Council documents relating to legislative decision-making  are made public after “the final adoption” of measures

– The Council uses Article 4.3, the “space to think”, to refuse access to 50% of requests for access to legislative documents under discussion

Tony Bunyan, Statewatch Director, comments:

“The Council have constructed a two-tier system of secrecy to keep from public view thousands and thousands of documents. This has been compounded by the failure of the European Commission to put forward proposals to implement the provision in the Lisbon Treaty to make all documents concerning the legislative procedure public.

In place of the need to deepen democratic openness and accountability in EU the Council has entrenched a system of secrecy based on its discretion to decide whether and when to make documents public.

The result is that the European legislature – the Council of the European Union and the European Parliament – meet in secret trilogues to decide over 80% of new laws going through the EU.”

What data are they keeping about your air travel?

Can you really see what records are kept about your travel?

http://hasbrouck.org/blog/archives/001595.html

Edward Hasbrouck’s blog

One of the big differences between American and European attitudes is that people in the USA tend to be much less willing to trust that the government is doing its job in accordance with the law. Many Europeans have told me this, and it’s also what I’ve observed in the feedback and reactions to my work on issues of privacy, surveillance, and control of travellers.

European debate has focused on rules and policies, and has paid little attention to practices. Europeans seem to have trusted that travel compnaies and the government will comply with whatever rules are adopted, and that their public statements accurately describe what they really do, such as what records they keep about travellers and how they use those records.

As a suspicious, mistrustful American, I pay much more attention than my European friends to compliance, enforcement, and oversight mechanisms. Based on years of insider experience with travel companies, and a lifetime of experience with government agencies in the USA, I don’t trust either type of organization (governments or corporations) to police themselves.

I believe that I can do something when I have actually tried it and have succeeded in doing it, not when some law says that I am supposed to be allowed to do it. As a litigious American (actually, I’ve never sued anyone, nor been sued), I think it’s essential for people to be able to enforce their own rights through private action, not to have to rely on the government for protection — especially when when it comes to protection against the excesses and abuses of governments themselves.

As a result of these (typically American) attitudes, I’ve been part of the most extensive set of private tests of what rights travellers actually have, in practice, to see what records travel companies and governments are keeping about our movements. These tests have been much more extensive — even with respect to rights supposedly guaranteed to Europeans and under European law — than any undertaken by Europeans themselves.

The results are significant for Americans, Europeans, and anyone concerned about the right to travel in the face of a growing surveillance state (corporate and/or governmental):

Under EU law, travellers are supposed to have the right to see all of the records about them kept by travel or other companies, and to be told what data about them has been sent to other countries or third parties (including governments).

But when I asked the airline to see the records of one of my trips from the USA to the EU and back, and to be told what third parties (especially in the USA) had accessed my records, they told me that no one had ever asked any European airline for these details before! KLM Royal Dutch Airlines — one of the largest airlines in Europe, with records about tens of millions of travellers — had never developed any procedures for actually complying with the law regarding access to those records, and took months to figure out what to do.

Eventually, KLM told me that they had outsourced the handling of my data to companies in the USA, in spite of the fact that there is no data protection law in the USA. KLM told me they didn’t know what data their contractors and agents had collected or retained, or with whom they might have "shared" my data. KLM said they had no provisions in their contracts that would enable them to force their contractors to provide me with this information.

When I asked the Dutch Data Protection Authority to intervene, they too told me that mine was the first such formal request that they had received in any case involving airline reservations. They also admitted that they had no staff with the technical competence or industry knowledge to interpret the limited data that KLM had disclosed, or to assess the truth of KLM’s claims. A year after my original request to KLM for my travel records, the Dutch authorities told me that they couldn’t help me, and that I could do nothing more unless, within 45 days, I could hire a lawyer in the Netherlands to prepare and file a private lawsuit, at my own expense, in Dutch, in Dutch court, against the airline (which of course I wasn’t able to do, especially since I was travelling in Africa at that time).

So much, in real-life practice, for my greater "rights" under European data protection law.

Under US law, citizens and permanent residents of the USA have the right under the Privacy Act to advance notice from the US government (although not from private companies) of what systems of personal records each government agency keeps, and how it uses those records. We also have the right, with many exceptions, to request copies of those records from the Federal government (but again, not from private companies).

When the existence of US government databases of Passenger Name Records (PNR’s) going back to at least 1999 was revealed in 2006, the Identity Project immediately requested those records on behalf of ourselves and some of our friends. The responses were obviously incomplete, and inconsistently and inappropriately redacted. They also included information contrary to what the DHS had promised in its "agreement" with the EU, such as personal data about non-travelling third parties and records of flights entirely within the EU, on European airlines, ticketed separately from any flights to or from the USA or on US-based airlines.

I helped analyze the responses, and we published the first report of what we learned in September of 2007, along with forms that members of the public could use to make their own requests for their PNR data. Widely-distributed news stories about our report prompted a surge of requests from which the DHS apparently has yet to catch up. We also appealed some of the omissions and redactions from the responses to our initial requests. My own appeal is more than a year old, and has received no acknowledgement or response (in violation of the Privacy Act time limits for appeals).

As part of an "agreement" between the DHS and the EU, the DHS has promised to allow all passengers on airline flights between the USA and the EU the same access as US citizens and permanent residents to DHS records of their

I know of only one attempt to test whether the DHS is honoring that promise to the EU: a Member of the European Parliament, who had travelled to the USA, requested her records from the DHS. The first response from the DHS was a (false) claim that the DHS had no record of her trip. When she appealed (to a higher officer within the DHS), she was told that the DHS "might" have records about her. But she didn’t receive any of those records within the time limit for a response under the Privacy Act or Freedom Of Information Act (FOIA).

Only after lawyers in the USA filed a Federal lawsuit on her behalf did this MEP receive any of her records from the DHS. (At her lawyers’ request, and after review of the documents, I submitted a declaration in her lawsuit as an expert in PNR’s and their content.) As with US citizens who requested their records, what was eventually released to this MEP by the DHS was late, clearly incomplete, and inconsistently and inappropriately redacted.

Now the DHS has released its own report on its "compliance" with the PNR agreement. As analyzed in detail by the Identity Project, the DHS report admits to practices that systematically violate the Privacy Act (for US citizens and residents) and the PNR agreement (for other subjects of data in PNR’s from EU-USA flights). Responses to requests for PNR data, according to the DHS’s own report, typically have taken a year or longer, and remain backlogged. People who have asked for "all" their records typically weren’t given any of their PNR’s. Redactions from what data was released were inconsistent and often inappropriate.

All these real-world experiences suggest that neither American nor Europeans should trust the DHS or travel companies to police themselves, or rely on existing compliance, enforcement, or oversight mechanisms. Legal rights and promises with respect to travel records have proven unenforceable both in the US and the EU, for both US and EU citizens.

A dialogue about what restrictions should be placed on government and corporate surveillance and control of our movements, while essential, will be hollow unless it is accompanied by an equally vital dialogue about how to provide for enforcement of those restrictions — and unless it starts from a recognition that existing compliance, enforcement, or oversight mechanisms have entirely failed, in practice, to protect trans-Atlantic travellers.

[Update: Giant US air travel data suck fails own privacy tests , by John Lettice, The Register (UK), 29 December 2008. Response in the DHS "leadership Journal" blog, 31 December 2008. The Chief Privacy Officer for the DHS claims that the DHS is "trying" to follow the law, but neither denies nor even mentions any of the specific DHS compliance failings to which the Identity Project called attention, or any of the other facts in our description and analysis of the history of DHS use of PNR data.]

[Further update: In addition to the earlier excerpts from DHS travel records published last year in the Identity Project report , the Washington Post story, and the records released to me by KLM , Sean O’Neill of Budget Travel has published some excerpts this month from the DHS response to his request, including a page from a TECS index of Border Crossing Information System entries and a page from a PNR.]

[Further update: How to request your travel records (with updated forms)]

Daughter of victim denounces U.S. government secrecy

TESTIMONY OF JUDITH LOETHER, DAUGHTER OF VICTIM  IN U.S. v. REYNOLDS 
http://www.fas.org/sgp/congress/2008/statesecref.html

Hearing before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary, House of Representatives, 110th Congress, Second Session, January 29, 2009

Ms. Loether:

Mr. Chairman, Members of the Committee, I  would like to start by saying that this morning I saw the  statues outside that represented the majesty of law and the  spirit of justice. I would like to think those principles do  indeed always guide us in this great country.

I am Judy Loether. I am an ordinary housewife from the  suburbs of Boston. You might call me chief cook and bottle- washer. I have come to tell you my story.

Six years ago, I did not know the first thing about the  state secrets privilege.

Almost 60 years ago, when I was just 7 weeks old, my  father, an engineer for RCA, was killed in the crash of a B-29.  This put the death of my father and my mother’s subsequent  lawsuit against the United States government squarely in the  center of the landmark case United States v. Reynolds.

My mother remarried and, while growing up, I knew very  little about my own father and the lawsuit. My mother got some  money. I thought she had won. I never knew her case went to the  Supreme Court.

The death of my father was quite a mystery to me. The  newspaper clippings in the attic had pictures of the wreckage  and talked of secret missions and even cosmic rays. My uncle  used to tell me that he thought the Russians blew up the plane.

After I had my own children, I became very interested in  this man who was my father, the man whose pictures and  documents of life and death had resided in the attic. When the  Internet came to my house, I searched for information about  anything related to his work and his life.

One day, I happened to type into the search engine “B-29 +  accident.” It was only chance that brought me to accident- report.com which provides accident reports for Air Force  accidents from 1918 to 1953. My first thoughts were, “This  might tell me about the secret project he was working on. This  might tell me if the Russians blew up the plane!”

When I read this report, I felt a great deal of  disappointment as there was no information about the project,  the mission, or the equipment. Instead, it contained a truly  sad and very dark comedy of errors that led to the terrible  death of my father and eight other men.

Just some of these mistakes: With engine number 1 in  flames, the pilot shut down the wrong engine, number 4; the  engineer, charged with the task of cutting the fuel to the  burning engine, cut the fuel to engine number 2. Now we have  the largest bomber in the world flying on one of its four  engines. What is more, the heat shield to be retrofitted into  B-29s to prevent fires was never installed. There were many,  many more mistakes.

The report did spur me on to look for and find another  little girl who had lost her father on that plane. It was  through her that I learned about the Supreme Court case.

That very day, I looked up the Reynolds decision on my  computer. What I read there sent me on a journey that has  brought me here today. I read a decision that hinged on this  very same accident report, an accident report that the  Government claimed told of the secret mission and the secret  equipment. All I could think was, “No, it does not!”

Part of the Reynolds decision stated: “Certainly, there  was a reasonable danger that the accident investigation report  would contain references to the secret electronic equipment  which was the primary concern of the mission.”

This accident report was not about secret equipment. This  accident report was not about a secret mission. Even more  telling, this accident report was not even classified as  secret. And I now understood that my mother had lost her case.

As time passed, I came to understand the significance of  the Reynolds case in establishing the state secrets privilege.  I learned that it was discussed in law school courses on  national security law. It seemed to me that the case that  allows the executive to keep its secrets was, at its very  foundation, a gross overstatement by the Government to forward  its own purposes, to get themselves a privilege. At what cost?  The cost was truth and justice and faith in this Government.

Five years ago, I stood in the woods in Waycross, Georgia,  at the crash site. I thought about my father who spent his  entire career working for the Government. His last thoughts  must have been for the wellbeing of his family and who would  take care of them.

Mistakes were made on that plane, and the Air Force should  have done the right thing. The average American who backs out  of his driveway and accidentally runs over his neighbor’s  mailbox will stop, walk up to his house, knock on the door, and  own up to his mistake. However hard it is to look the fool,  however hard it is to fork over the cash, it is simply the  right thing to do, and it is how we all expect our Government  to act when it makes a mistake.

For the other families, for my father, my mother, my two  brothers and me, my America did not see fit to do the right  thing, to step up, admit to their mistakes, and compensate  three widows and five little children. It was more important to  get a privilege.

I decided that day to try to let the people of this country  know this is not the American way and is contrary to what I  believe America stands for in the minds and hearts of its  people.

The judiciary cannot give up any of the checks and balances  that make this country great. Judicial review must be the  watchdog that guards against actions by the executive that chip  away at the moral character of this country.  

Violations of law may be classifed, court says

VIOLATIONS OF LAW MAY BE CLASSIFIED, COURT RULES

Steven Aftergood (Secrecy News, published by the Federation of American Scientists: http://www.fas.org/blog/secrecy/

Information that would reveal a violation of the law may be properly classified as long as it is not deliberately classified for the purpose of
concealing the violation, a federal judge indicated this week.

That view, in a ruling (pdf) against the ACLU by DC District Judge Royce C. Lamberth, all but nullifies one of the principal limitations on national security secrecy contained in the executive order on classification policy.

In section 1.7 of executive order 12958, as amended, on "classification limitations and prohibitions," the President directed that "In no case shall information be classified in order to … conceal violations of law…."

The ACLU cited this provision in a recent FOIA lawsuit to argue that transcripts of detainee tribunal hearings could not be
properly classified under the executive order if they revealed evidence of
prisoner abuse or other illegal conduct. The court rejected that argument.

"Plaintiffs [ACLU] claim that some material was improperly classified
because it may contain evidence that the government has violated the law," Judge Lamberth wrote in an October 29
ruling. "But plaintiffs misapprehend the Executive Order," he wrote (at page 6). "Executive Order 12958 prohibits classifying information ‘in order to … conceal violations of the law.’ However, there is no indication that these materials were classified ‘in order to’ conceal violations of the law…."

In other words, according to Judge Lambert, classifiers actually may conceal violations of the law as long as such concealment is not the specific purpose of the classification.

This narrow understanding of the executive order converts an important
guarantee of the integrity of the classification process into an empty
rhetorical gesture.

Under Judge Lamberth’s interpretation, the executive order provision
limiting classification of violations of the law is not a limitation on the
types of information that may be classified at all, but rather an
unverifiable limitation on the classifier’s intention. The provision is not
concerned with the consequences of classification (i.e., the fact that
criminal activity will be concealed from public knowledge) but instead
focuses on the mental state of the classifier. Did he or she specifically
intend to conceal violations of the law? If not, the classification may
proceed, even if concealment is the inevitable result. And since the
classifier’s mental state is unknowable by others or may itself be
concealed, the executive order’s limitation is deprived is of significant
meaning.

In the past, the limitation on classification of violations of the law was
construed more broadly as a public assurance that classification would not
be used to conceal criminal activity by the government. (It was never
understood to require publication of information about third-party crimes
collected through classified intelligence or law enforcement methods.)

In 2004, the Federation of American Scientists cited the provision in a
complaint (pdf) filed with the Information Security Oversight Office (ISOO), contending that the Taguba report (pdf, classified SECRET) that found evidence of criminal abuses at Abu Ghraib prison was improperly classified. ISOO, led by then-director J. William Leonard, undertook an investigation into the propriety of the report’s classification and reported some noteworthy results (pdf). Not only was the Taguba report released in declassified form, but the Pentagon undertook a Department-wide initiative to improve classification training, management and oversight. The "motivation" in the mind of the classifier never came up.

The Secretary of Defense himself also issued a Department-wide
memorandum (pdf) to remind classifiers of their responsibility to exercise classification authority properly, and he specifically cited the prohibition on classifying criminal activity. In his September 16, 2004 memo, Defense Secretary Donald Rumsfeld paraphrased the executive order limitation as follows: "It is important to state that classifiers shall not… use classification to conceal violations of law…."

Interestingly, Secretary Rumsfeld did not use the phrase "in order to" which Judge Lamberth singled out to justify his interpretation of the order as a prohibition only on deliberate concealment. The Rumsfeld paraphrase seems to reflect the prior understanding that classification should not be used "so as to" conceal violations of the law, regardless of the intentions of the classifier.

But if violations of the law may in fact be classified, then it is important
for Americans to know that. If Judge Lamberth has made it easier for
classifiers to conceal violations of the law, he also put the public on
notice that this is how the national security classification system now
functions.

The State Secrets Privilege: Selected Case Files

The State Secrets Privilege: Selected Case Files

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years. In the twenty-three years between the decision in Reynolds [1953] and the election of Jimmy Carter, in 1976, there were four reported cases in which the government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege. Because reported cases only represent a fraction of the total cases in which the privilege is invoked or implicated, it is unclear precisely how dramatically the use of the privilege has grown. But the increase in reported cases is indicative of greater willingness to assert the privilege than in the past."

"Other than the scarce exception, the privilege is invariably fatal to efforts to gain access to covered documents. It is hardly surprising that such an effective tool would tempt presidents to use it with increasing frequency and in a variety of circumstances."

Read more: Project on Government Secrecy

National Archives Agreement Let C.I.A. Withdraw Public Documents

The C.I.A. arrangement required that [U.S. National] Archives employees not reveal to researchers why documents they requested were being withheld.
Published on Tuesday, April 18, 2006 by the New York Times

National Archives Pact Let C.I.A. Withdraw Public Documents

by Scott Shane

Detainees may not say how they were tortured

The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk.
U.S. Seeks Silence on CIA Prisons
Court Is Asked to Bar Detainees From Talking About Interrogations

By Carol D. Leonnig and Eric Rich
Washington Post Staff Writers
Saturday, November 4, 2006; Page A01

The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk.

The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release — even to the detainees' own attorneys — "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26.

The battle over legal rights for terrorism suspects detained for years in CIA prisons centers on Majid Khan, a 26-year-old former Catonsville resident who was one of 14 high-value detainees transferred in September from the "black" sites to the U.S. military prison at Guantanamo Bay, Cuba. A lawyer with the Center for Constitutional Rights, which represents many detainees at Guantanamo, is seeking emergency access to him.

The government, in trying to block lawyers' access to the 14 detainees, effectively asserts that the detainees' experiences are a secret that should never be shared with the public.

Because Khan "was detained by CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques that is classified at the TOP SECRET//SCI level," an affidavit from CIA Information Review Officer Marilyn A. Dorn states, using the acronym for "sensitive compartmented information."

Gitanjali Gutierrez, an attorney for Khan's family, responded in a court document yesterday that there is no evidence that Khan had top-secret information. "Rather," she said, "the executive is attempting to misuse its classification authority . . . to conceal illegal or embarrassing executive conduct."

Joseph Margulies, a Northwestern University law professor who has represented several detainees at Guantanamo, said the prisoners "can't even say what our government did to these guys to elicit the statements that are the basis for them being held. Kafka-esque doesn't do it justice. This is 'Alice in Wonderland.' "

Kathleen Blomquist, a Justice Department spokeswoman, said yesterday that details of the CIA program must be protected from disclosure. She said the lawyer's proposal for talking with Khan "is inadequate to protect unique and potentially highly classified information that is vital to our country's ability to fight terrorism."

Government lawyers also argue in court papers that detainees such as Khan previously held in CIA sites have no automatic right to speak to lawyers because the new Military Commissions Act, signed by President Bush last month, stripped them of access to U.S. courts. That law established separate military trials for terrorism suspects.

The U.S. Court of Appeals for the District of Columbia Circuit is considering whether Guantanamo detainees have the right to challenge their imprisonment in U.S. courts. The government urged Walton to defer any decision on access to lawyers until the higher court rules.

The government filing expresses concern that detainee attorneys will provide their clients with information about the outside world and relay information about detainees to others. In an affidavit, Guantanamo's staff judge advocate, Cmdr. Patrick M. McCarthy, said that in one case a detainee's attorney took questions from a BBC reporter with him into a meeting with a detainee at the camp. Such indirect interviews are "inconsistent with the purpose of counsel access" at the prison, McCarthy wrote.

Dorn said in the court papers that for lawyers to speak to former CIA detainees under the security protocol used for other Guantanamo detainees "poses an unacceptable risk of disclosure." But detainee attorneys said they have followed the protocol to the letter, and none has been accused of releasing information without government clearance.

U.S. Seeks Silence on CIA Prisons

Captives who have spent time in the secret prisons, and their advocates, have said the detainees were sometimes treated harshly with techniques that included "waterboarding," which simulates drowning. Bush has declared that the administration will not tolerate the use of torture but has pressed to retain the use of unspecified "alternative" interrogation methods.

The government argues that once rules are set for the new military commissions, the high-value detainees will have military lawyers and "unprecedented" rights to challenge charges against them in that venue.

U.S. officials say Khan, a Pakistani national who lived in the United States for seven years, took orders from Khalid Sheik Mohammed, the man accused of orchestrating the Sept. 11, 2001, attacks. Mohammed allegedly asked Khan to research poisoning U.S. reservoirs and considered him for an operation to assassinate the Pakistani president.

In a separate court document filed last night, Khan's attorneys offered declarations from Khaled al-Masri, a released detainee who said he was held with Khan in a dingy CIA prison called "the salt pit" in Afghanistan. There, prisoners slept on the floor, wore diapers and were given tainted water that made them vomit, Masri said. American interrogators treated him roughly, he said, and told him he "was in a land where there were no laws."

Khan's family did not learn of his whereabouts until Bush announced his transfer in September, more than three years after he was seized in Pakistan.

The family said Khan was staying with a brother in Karachi, Pakistan, in March 2003 when men, who were not in uniform, burst into the apartment late one night and put hoods over the heads of Khan, his brother Mohammad and his brother's wife. The couple's 1-month-old son was also seized.

Another brother, Mahmood Khan, who has lived in the United States since 1989, said in an interview this week that the four were hustled into police vehicles and taken to an undisclosed location, where they were separated and held in windowless rooms. His sister-in-law and her baby remained together, he said.

According to Mahmood, Mohammad said they were questioned repeatedly by men who identified themselves as members of Pakistan's intelligence service and others who identified themselves as U.S. officials. Mohammad's wife was released after seven days, and he was released after three months, without charge. He was left on a street corner without explanation, Mahmood said.

Periodically, he said, people who identified themselves as Pakistani officials contacted Mohammad and assured him that his brother would soon be released and that they ought not contact a lawyer or speak with the news media.

"We had no way of knowing who had him or where he was," Mahmood Khan said this week at the family home outside Baltimore. He said they complied with the requests because they believed anything else could delay his brother's release.

In Maryland, Khan's family was under constant FBI surveillance from the moment of his arrest, his brother said. The FBI raided their house the day after the arrest , removing computer equipment, papers and videos. Each family member was questioned extensively and shown photographs of terrorism suspects that Mahmood Khan said none of them recognized. For much of the next year, he said, they were followed everywhere.

"Pretty much we were scared," he said. "We live in this country. We have everything here."

Staff researcher Julie Tate contributed to this report.

Government keeping more secrets in name of national security

Government keeping more secrets in name of national security

By LANCE GAY
Scripps Howard News Service
02-FEB-05

 

WASHINGTON — Federal agencies are using secrecy rules developed after the 9/11 attacks to hide embarrassing or controversial reports and data that the federal government once routinely made public.

Environmental groups, scientific organizations and animal-rights advocates are complaining about increasing difficulties in obtaining information on what government inspectors are finding about worker safety at nuclear power plants, toxic releases at chemical plants, or tests on live animals in scientific laboratories.

In February 2002, the U.S. Agriculture Department removed from its Web site annual reports on how scientific laboratories are treating animals during experiments. The department said it wanted to see whether the reports contained "homeland security information."

Martin Stephens, vice president for animal research issues at the Humane Society of the United States, said the Justice Department ruled that the material the government is required to gather under the Animal Welfare Act doesn’t involve security concerns, but the Agriculture Department has refused to release any recent reports or put the material back online.

"It’s pretty much the only source of this information," Stephens said. "Without these documents, we are in the dark about what’s going on."

He said the department’s surveys reflect the prevalence of live testing on animals in scientific laboratories and require documentation for the rationale for withholding pain medication when tests are conducted.

The government reports have also been used to document that some universities that publicly deny they are involved in live animal testing are experimenting with animals in their laboratories.

The Humane Society filed suit this week seeking to obtain the documents. Agriculture Department spokesman Jim Rogers said he could not respond to questions on the issue because the matter is being litigated.

Michele Boyd, legislative director for the watchdog group Public Citizen, said the Nuclear Regulatory Commission removed data on worker safety issues and health effects for a proposed Louisiana Energy Services nuclear facility in southeastern New Mexico.

"What health and worker safety information would be of interest to terrorists?" Boyd asked. She said workers at the plant and neighbors around it deserve to know what dangers they are facing.

"We scream about it, and they don’t particularly care," Boyd said.

The agency initially posted information from an environmental impact statement on its Web site, but then withdrew some materials in December that discussed the potentially lethal consequences of accidents.

New Mexico Gov. Bill Richardson joined activists in protesting the withdrawal of the documents, saying it makes it impossible for citizens to make informed decisions about the facility.

Many other agencies are using the post 9/11 crack down to keep secret data that once was public:

_ The Environmental Protection Agency is no longer releasing the information it gathers when chemical plants dump toxic substances.

_ The Federal Energy Regulatory Commission is refusing to release publicly documents that it prepared in secret on the dangers of liquefied natural gas terminals under construction along America’s coastlines. The commission claims the material is "critical energy infrastructure information."

_ Despite bitter complaints from the nation’s mayors, the Homeland Security Department won’t tell police and fire departments when dangerous shipments of hazardous materials move through their jurisdictions. South Carolina authorities weren’t alerted to the presence of a Norfolk and Southern Railroad tanker carrying chlorine until it exploded on a railroad siding, killing nine people. There are 90,000 shipments by rail of chlorine each year, and the federal government cites the need to keep the information from terrorists as justification for secrecy.

_ The Justice Department had been withholding details of what’s been happening in secret proceedings against immigrants since 9/11. After losing a lawsuit over the issue, the department presented the People for the American Way Foundation with a $373,000 bill this week for rounding up documents on the cases.

A study by the Rand Corp. last year of the 36 Web sites and more than 600 public data bases shut down after 9/11 concluded government efforts to censor information was ill-advised and ineffective. Terrorists would not be interested in much of the information and, in any event, it could be obtained elsewhere in textbooks, trade journals or through non-government sites, the study concluded.

But government secrecy is expanding. The Department of Homeland Security issued regulations last June telling government agencies they no longer need to release environmental impact statements, and secrecy rules are being applied not only to documents the government gathers, but also to information the government finances.

The Council on Government Relations, representing the nation’s university system, protests that scientists are facing unprecedented new rules written into research contracts requiring them to suppress sensitive but unclassified materials and also to receive special approval if foreigners are involved in the government-financed research.

Albert Teich, of the American Association for the Advancement of Science, said that unlike classified research for which there are written rules, there are no firm guidelines on how to handle sensitive but unclassified information. In a December 2004 report, the Congressional Research Service found the way government agencies handle sensitive but unclassified materials differs widely across the government.

"This is a gray area," he said. He worries the bureaucracy is treating the material over-cautiously to avoid recriminations if U.S. government documents later show up in a cave in Afghanistan.

Teich said tightly applied rules prevent necessary scientific exchange, and a preoccupation with secrecy hurts America’s long-term economic health.

"The whole scientific enterprise moves forward on the free exchange of ideas and information," he said. "We could be shooting ourselves in the foot if we do anything that slows down this sort of research."

 

(Contact Lance Gay at GayL(at)SHNS.com. Distributed by Scripps Howard News Service, http://www.shns.com)

Department of Defense responses on PATRIOT Act

DEPARTMENT OF JUSTICE RESPONSES TO QUESTIONS FOR THE RECORD CONCERNING THE USA PATRIOT ACT (P.L. 107-56)

COMMITTEE ON THE JUDICIARY UNITED STATES HOUSE OF REPRESENTATIVES JUNE 5,2003

Written answers by the Department of Justice to the Committee on the Judiciary to questions by the Committee asked on a hearing held in June 5, 2003. The answers were sent to the Committee on February 13, 2004, with an apology for the delay.

(excerpts)

Question 5(d): How many aliens have been charged on terrorism-related crirrlinnl grounds since September 11,2001? Are these the only aliens whom the Justice Department believes are related to terrorism?

Answer: Since September 11,2001, six aliens have been charged with terrorism-related criminal grounds in connection with the PENTBOMB investigation. Similar to the response to questions (a) and (c) above, there may be many reasons why the Department has not brought criminal charges against individuals whom we believe to be connected to terrorism. For example, the information we possess may not relate to a~pecificr iminal violation under U.S. law, or the information may be classified and cannot be declassified. In addition, the burden of proof is higher for criminal cases, and the information that we possess may not be sufficient to prove guilt beyond a reasonable doubt.

Question 5 (e): Are there any reasons why the Justice Department would deport an alien who is suspected of terrorist ties or of engaging in terrorist activities rather than charging the alien criminally? Why would the Justice Department do this? Has the Justice Department done this?

Answer: In some cases, the FBI and other law enforcement agencies were able to determine that aliens detained in connection with the September 11" investigation were no longer of investigatory interest and those individuals were subsequently released or deported. In other cases, while there may have been information linking an individual to criminal or terrorist activity, the information was not substantial enough to prosecute and all indications were that no further substantive information would surface. In those cases, in the interest of national security, it was determined that the best course of action was to proceed with deportation and remove a potentially dangerous person from our borders based upon an immigration violation rather than release the individual into American society. The Department believes that it is best advised to use all legal tools at our disposal to detain, investigate and prosecute violations of our nation’s laws and ensure that any threats to the American people are neutralized, whether it be through detention or removal.

Question 12 (c): Does the Justice Department, any agent of the Department, or contractor on behalf of the Department investigate or maintain files on people who are not legitimate suspects of crime or terrorism?

Answer: Yes. The Department of Justice maintains a variety of investigative and background files on individuals who are not currently "legitimate suspects of crime or terrorism." Examples of such persons or entities would include: employees of the Department or applicants for employment (e, the results of background checks); contractors and bidders; grant applicants and recipients; material witnesses; civil litigants; foreign agents; persons entered into the National Crime Information Center; and others, consistent with the Department’s lawful responsibilities. This list is not intended to be exclusive.

Question 14. On May 31, a Philadelphia Inquirer editorial made the following observations: Why, for instance, have so many criminal cases been mislabeled as instances of international terrorism? As Inquirer staff writer Mark Fazlollah has documented, dozens and dozens of people charged in such cases have proven to be unconnected to terror groups. Could someone be trying to hype the antiterrorism beneJits of the new powers to build a case to extend them even further? In New Jersey, federal prosecutors recently pulled 65 Middle Eastern students’ cases @om terrorism lists. They said the students’ hiring of stand-ins to take English exams for college was not terrorism-related. What is your response?

Answer: The allegation that the Department is intentionally mislabeling numerous terrorismrelated matters is not accurate. The information cited in this editorial appears to be based on a January 2003 report by the General Accounting Office (GAO) that cited 288 terrorism-related cases as being "misclassified". The problem cited by the GAO report was caused not by intentional mislabeling, but by transition issues resulting from a change in how anti-terrorism cases were categorized prior to September 11′ and how they are subsequently categorized after September 1l th. The "misclassifications~w’ ere the result of late notice to the United States Attorneys’ Offices of Terrorism and Anti-Terrorism code changes and insufficient time for offices to make the changes prior to the GAO report. The GAO report acknowledged the fact that 127 of the "misclassified" cases fell under new anti-terrorism case categories and that only five of the 288 cases the GAO cited, or less than two percent, were unrelated to terrorism or our anti-terrorism efforts.

These classification codes were revised and supplemented after September 1 lth to properly capture the types of prosecutions being used to fight terrorism. Prior to September 1 lth, the Executive Office for United States Attorneys (EOUSA) had only two terrorism-related case classification codes — International Terrorism and Domestic Terrorism. Reflecting the new reality after September 1 lth, EOUSA first added a case classification code for Terrorism-Related Hoaxes, then later added a code for Terrorist Financing and several codes for Anti-Terrorism (such as Identify Theft, Immigration, and Violent Crime) to capture activity intended to prevent or disrupt potential or actual terrorist threats where the offense conduct would not fall within one of the already-existing codes.

Under the new codes, the broad range of prosecutions used to disrupt activities that could facilitate or enable future terrorist acts and anti-terrorism cases are now able to be captured. While some of these illegal acts may prove to be for personal benefit, activities such as identity theft, and immigration violations may also be used to position individuals who plan to commit future acts of terrorism. So called "sleepers" are difficult to identify as they will seek to blend in with minimal illegal activity until they are activated.

To ensure that data on all anti-terrorism cases is captured and included in EOUSA statistics, EOUSA, working with the Department’s Criminal Division, on August 7,2002, sent a memorandum to all United States Attorneys directing that appropriate pending cases and appropriate cases closed in Fiscal Year 2002 be reclassified, if needed, to reflect the new case classification codes. Under this directive, all TerrorismIAnti-Terrorism cases in Fiscal Year 2002 should have been re-sorted according to the new codes. With the transition to a new coding scheme so close to the end of the fiscal year, some United States Attorneys’ Offices either did not have time to, or did not fully understand the need to, reclassify ‘already closed cases.

EOUSA has and will continue to take every reasonable step to ensure that proper reclassification is completed and that future data entries are complete and accurate. A process exists for the review of United States Attorney case management system data and EOUSA is working to continue to oversee and validate the accuracy of case classification and conviction data entered into the case tracking system by the various United States Attorneys7 Offices. On April 9,2003, EOUSA sent a directive to the United States Attorneys asking them to review all Terrorism and Anti-Terrorism matters and cases and ensure that the most appropriate Terrorism or Anti- Terrorism program category code is assigned. The United States Attorneys’ Offices are required to perform this data quality review quarterly. This directive re-emphasized the critical role of the United States Attorneys in providing the Department with accurate and timely caseload data.

The Department is committed to accurate reporting and accountability for cases prosecuted in federal court. This reporting ensures, for example, that Congress is able to provide adequate oversight of the Department’s activities, and ensure that the Department has adequate resources. To the extent that the GAO Report identified various weaknesses in the current system, the Department is committed to taking every reasonable step to ensure that proper reclassification is completed and that future data entries are complete and accurate.

Finally, the referenced cases in the District of New Jersey began as an investigation into a fraudulent scheme whereby people paid imposters to take the Test of English as a Foreign Language (TOEFL). During the course of the investigation, it was discovered that one of the test takers had in his possession material that caused the investigation to broaden. The investigation into possible terrorist activity was pursued vigorously and fortunately terrorist activity was not discovered. At the conclusion of the investigation, it would have been more appropriate for the cases to be coded under an Anti-Terrorism category.

 

Outrageous FOIA Fees as barrier to information access

http://www.pfaw.org/pfaw/general/default.aspx?oid=17777
email: media@pfaw.org
Contact: Josh Glasstetter, Halle Czechowski
People For the American Way, 31 January 2005

Dept. of Justice Asks for Outrageous FOIA Fees in Secret Trials for 9-11 Detention Cases

Washington, DC ? People For the American Way Foundation (PFAWF) President Ralph G. Neas said today that a Justice Department demand for nearly $400,000 in fees for a FOIA request regarding the decision to seal the records of immigrants detained in the wake of the 9-11 terrorist attacks is outrageous, and another in a series of strategies to deny access to public information.

“Apparently, they?ve taken the “free? out of “Freedom of Information.” If you want to learn about secret trials carried out by your government with your money, you’re going to need deep pockets,” said Neas.

“It’s clear that this is just the latest tactic in the Justice Department’s ongoing effort to hide information from the American public, particularly about “secret? legal proceedings for immigrants held for months and sometimes years in the wake of the terrorist attacks,” said Neas. “In decades of public advocacy, we’ve never been asked to provide fees of this magnitude. They?re clearly setting up new barriers to the release of information that ought to be made public immediately. It begs the question: What are they hiding”?

PFAWF first made the FOIA request November 25, 2003. It was denied by the Justice Department on the grounds of privacy in December, 2003. PFAWF contested the decision in a lawsuit filed in August, 2004. Only after the lawsuit was filed did Justice Department officials decide to ask for the records from U.S. Attorneys” offices around the country. The department then concocted an estimate of $372,999 for the request, and asked for advance payment in a letter sent January 11, 2005. PFAWF has until February 10 to respond.

“The Freedom of Information Act was intended to give American citizens and the news media access to records that will help them protect their rights and see how the tremendous power of the government is being used. It’s especially important under one-party rule,” sad Neas. “We’re going to fight this outrageous demand.”

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