Secrecy News -- 12/20/12

Thu Dec 20 10:45:11 PST 2012

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 128
December 20, 2012

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

**     DETAINED LINGUIST RELEASED UNDER SUPERVISION
**     CONGRESS PERMITS RECLASSIFICATION OF RESTRICTED DATA
**     OFFSHORING, CHEMICAL WEAPONS, AND MORE FROM CRS

DETAINED LINGUIST RELEASED UNDER SUPERVISION

Yesterday former Navy contract linguist James Hitselberger, who has been
charged under the Espionage Act with mishandling classified records, was
ordered released under supervision while awaiting trial.

Mr. Hitselberger is a multi-lingual translator and collector of rare
documents, including records that are now housed in a dedicated collection
at the Hoover Institution at Stanford University.  Unfortunately for him,
the government says that his collection activity extends to some documents
that are currently classified.  (Document Collector Charged Under Espionage
Statute, Secrecy News, November 7, 2012).

	http://www.fas.org/blog/secrecy/2012/11/collector_charged.html

Prosecutors had opposed his pre-trial release, arguing that he had fled
from law enforcement by traveling for months through Europe, and that he
posed a flight risk.  But Mr. Hitselberger's public defender argued
effectively that could not have "fled" since he had not been charged with
anything until recently, that he had traveled openly under his own name,
that he remained in contact with his former employer, and that he
voluntarily returned to a U.S. Army facility in Kuwait to recover his
possessions.

"As far as he knew, Mr. Hitselberger was free to travel--which he did,"
Judge Rudolph Contreras summarized in a memorandum opinion issued today.
"And as he traveled, he kept in regular contact with many people through
many means, openly used his United States passport, and was willing to go
to a military base, which no reasonable fugitive would be likely to do."

	http://www.fas.org/sgp/jud/hitsel/122012-memop.pdf

Therefore Judge Contreras ruled for the defense and granted his release,
albeit under "high intensity supervision" and with "Global Positioning
System monitoring" of his whereabouts.

Moreover, "he is expressly prohibited... from entering or being in the
immediate vicinity of Union Station, any other bus or train station that
provides service outside of the Washington metropolitan area, or any
airport...."

	http://www.fas.org/sgp/jud/hitsel/121912-order.pdf

Mr. Hitselberger has no record of criminal activity, no predisposition to
violent behavior, and even prosecutors admit that he was not engaged in
espionage on behalf of a foreign power.  There is also no indication that
even the mildest adverse consequence arose from his alleged conduct.  And
yet the government has opted to charge him with two felony counts under the
Espionage Act, which seems like an extraordinary overreaction given the
circumstances.

In a different policy environment, loss of job and loss of clearance --
which Mr. Hitselberger has already suffered -- would have been deemed a
fully satisfactory response to an offense of this type and magnitude.

Thus, speaking at his 1997 CIA confirmation hearing about his response to
leaks (at p. 108), George Tenet said "I don't want to prosecute anybody; I
want to fire somebody. That will send the right signal to people."

	http://www.fas.org/irp/congress/1997_hr/tenet.pdf

But today, the Obama Justice Department seems unwilling to accept anything
short of the maximum available punishment for unauthorized disclosures, at
least for those who are not senior officials or acting under color of
authority.

It's not only the Administration, however.  This week the House and Senate
adopted a sense of Congress resolution urging the Department of Justice to
"investigate possible violations of Federal law related to unauthorized
disclosures of classified information," adding that "in appropriate cases,
individuals responsible for such unauthorized disclosures should be
prosecuted to the full extent of the law."

	http://www.fas.org/sgp/congress/2012/unauth.html

Further anti-leak legislation is under imminent consideration in the
Senate.

Meanwhile, the White House yesterday issued a new "National Strategy for
Information Sharing and Safeguarding."

"To foster trust and safeguard our information, policies and coordinating
bodies must focus on identifying, preventing, and mitigating insider
threats and external intrusions, while departments and agencies work to
enhance capabilities for data-level controls, automated monitoring, and
cross-classification solutions," the Strategy states.

	http://www.fas.org/sgp/eprint/strategy.pdf

CONGRESS PERMITS RECLASSIFICATION OF RESTRICTED DATA

Certain nuclear weapons-related information that has been removed from the
category of Restricted Data (RD) and designated as Formerly Restricted Data
(FRD) can now be restored to the RD category, under a provision approved by
Congress in the FY 2013 national defense authorization act.

	http://www.fas.org/sgp/congress/2012/rd-reclass.html

Until now, the removal of information from the Restricted Data category
was irreversible, being prohibited by the Atomic Energy Act.  That
prohibition is nullified by the new legislation.

The authority to reclassify FRD as RD was requested by the Department of
Energy last year.

"There is sensitive nuclear weapons design information embodied in some
FRD... that should be subject to the more stringent security protections
afforded RD now than current programmatic capabilities of DoD and the
Intelligence Community permit," wrote Energy Secretary Steven Chu in an
August 4, 2011 letter.  (Dept of Energy Wants to Reclassify Some Info as
'Restricted Data', Secrecy News, January 17, 2012.)

	http://www.fas.org/blog/secrecy/2012/01/doe_rd.html

> From an outside point of view, the reclassification of any such
information will be undetectable and should not entail an increase in
government secrecy.  RD and FRD are equally opaque to the general public.

In fact, the move could potentially have positive repercussions.  By
removing the most sensitive information from the FRD category, it should
become more feasible to treat the remaining FRD as "ordinary" classified
information and to declassify it in an orderly fashion-- something which
does not happen currently.

Improving declassification procedures for FRD was among the
recommendations presented to the White House earlier this month by the
Public Interest Declassification Board.

	http://www.archives.gov/declassification/pidb/

"FRD information concerns the military utilization of nuclear weapons,
including storage locations and stockpile information and often dates from
the end of World War II through the height of the Cold War," the PIDB
explained in its report. "Although often no longer sensitive or current,
this type of FRD information is of high interest to researchers yet remains
largely unavailable to the public, because there is no process for
systematically reviewing it for declassification and release under the
terms of the Executive Order for national security information."

Therefore, the PIDB recommended, "The classification status of Formerly
Restricted Data (FRD) information should be re-examined. A process should
be implemented for the systematic declassification review of historical FRD
information."

In a 2010 statement to the PIDB, the Federation of American Scientists
suggested that the FRD category be eliminated altogether, arguing that it
has become obsolete and unnecessary.  But such a step was further than the
PIDB was prepared to go.

	http://www.fas.org/sgp/eprint/sa-frd.pdf

The Senate voted last week to reauthorize the Public Interest
Declassification Board until 2014, and the House followed suit yesterday by
a vote of 409-1.  Rep. Don Young of Alaska voted against the measure for
reasons he did not explain.

	http://www.fas.org/sgp/congress/2012/pidb-reauth.html

OFFSHORING, CHEMICAL WEAPONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that
Congress has not made available to the public include the following.

Offshoring (or Offshore Outsourcing) and Job Loss Among U.S. Workers,
December 17, 2012:

	http://www.fas.org/sgp/crs/misc/RL32292.pdf

Chemical Weapons: A Summary Report of Characteristics and Effects,
December 13, 2012:

	http://www.fas.org/sgp/crs/nuke/R42862.pdf

Party Leaders in the United States Congress, 1789-2012, December 18, 2012:

	http://www.fas.org/sgp/crs/misc/RL30567.pdf

U.S. Wind Turbine Manufacturing: Federal Support for an Emerging Industry,
December 18, 2012:

	http://www.fas.org/sgp/crs/misc/R42023.pdf

Survivor Benefits for Families of Civilian Federal Employees and Retirees,
December 18, 2012:

	http://www.fas.org/sgp/crs/misc/RS21029.pdf

The Federal Communications Commission: Current Structure and Its Role in
the Changing Telecommunications Landscape, December 18, 2012:

	http://www.fas.org/sgp/crs/misc/RL32589.pdf

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

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

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