[NYTr] FAS Secrecy News - 10/08/2007

[All the News That Doesn't Fit]

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 98
October 8, 2007

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

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**	BILL ON CONTRACTOR LIABILITY RAISES INTEL AGENCY CONCERNS
**	1997 REPORT OF THE OVERSEAS JURISDICTION ADVISORY COMMITTEE
**	JPL SCIENTISTS GAIN REPRIEVE FROM INTRUSIVE INVESTIGATIONS

BILL ON CONTRACTOR LIABILITY RAISES INTEL AGENCY CONCERNS

Last week the House of Representatives passed a bill to extend federal
legal jurisdiction to crimes committed abroad by U.S. contractors in
war zones such as Iraq, so that such crimes could be prosecuted in U.S.
courts.

But before the bill (H.R. 2740) was passed, it triggered alarms by
those who were concerned that its provisions could undermine U.S.
intelligence activities.

"The bill would have unintended and intolerable consequences for
crucial and necessary national security activities and operations," the
White House said without elaboration in an October 3 statement outlining
its opposition to the bill.

     http://www.fas.org/irp/news/2007/10/sap100307.pdf

Congressman J. Randy Forbes (R-VA) spelled out those intelligence
agency concerns in more detail on the House floor.

For example, he said, "If a clandestine asset was implicated in a
crime, investigating and arresting that asset under traditional
criminal procedures could expose other assets and compromise critical
intelligence activities."

More fundamentally, he complained, the new bill "applies the entire
criminal code to the new category of potential offenders and could
implicate the authorized business of the intelligence community
employees and contractors."

Rep. Forbes therefore introduced a motion stating that "Nothing in this
Act shall be construed to affect intelligence activities that are
otherwise permissible prior to the enactment of this Act."

The motion was approved, but not without some critical commentary.

"The [Forbes] amendment raises serious questions about the activities
its proponents may be seeking to protect," said Rep. David Price
(D-NC), who authored the new bill.

"Given that my bill only targets activities that are unlawful, why do
my colleagues feel the need to clarify that it does not affect
activities that are permissible?"

"What activities are contractors carrying out that are permissible but
not lawful?" Rep. Price wondered aloud.

"If there are private, for-profit contractors tasked with duties that
require them to commit felony offenses, Congress needs to know about
it. Such a revelation would point to a need for a serious debate about
whether we are using contractors appropriately," he said.

See the October 4 House debate on the new bill, the "Military
Extraterritorial Jurisdiction Act Expansion and Enforcement Act of
2007," which was passed by a large majority, here:

     http://www.fas.org/irp/congress/2007_cr/h-meja.html

The awkward fact is that intelligence collection operations are
routinely conducted in violation of established laws, including
international legal norms to which the United States Government is
formally committed.

"The CS [clandestine service] is the only part of the IC [intelligence
community], indeed of the government, where hundreds of employees on a
daily basis are directed to break extremely serious laws in counties
around the world in the face of frequently sophisticated efforts by
foreign governments to catch them," according to a 1996 House
Intelligence Committee staff report called IC21 (chapter 9, at page
205).

"A safe estimate is that several hundred times every day (easily
100,000 times a year) DO [Directorate of Operations] officers engage in
highly illegal activities (according to foreign law) that not only risk
political embarrassment to the US but also endanger the freedom if not
lives of the participating foreign nationals and, more than
occasionally, of the clandestine officer himself."

   http://www.fas.org/irp/congress/1996_rpt/ic21/ic21009.htm

1997 REPORT OF THE OVERSEAS JURISDICTION ADVISORY COMMITTEE

A decade ago Congress established an advisory committee to examine the
very issues of contractor liability in war zones abroad that have
recently been in the headlines again.

The Overseas Jurisdiction Advisory Committee spent a year analyzing the
state of the law, found "significant jurisdictional gaps" in the
government's ability to prosecute crimes committed abroad by
contractors, and recommended legislative remedies.

The Committee's extensive report laid the foundation for the 2000
Military Extraterritorial Jurisdiction Act, which applied to defense
contractors, and which would be extended by now-pending legislation to
non-defense contractors as well.

Up to now, the Committee's report has not been available online,
rendering it practically inaccessible.  A copy of the report obtained
by Secrecy News is now available on the Federation of American
Scientists web site.

See the Report of the Advisory Committee on Criminal Law Jurisdiction
Over Civilians Accompanying the Armed Forces in Time of Armed Conflict
(Overseas Jurisdiction Advisory Committee), April 1997:

     http://www.fas.org/irp/doddir/dod/ojac.pdf

JPL SCIENTISTS GAIN REPRIEVE FROM INTRUSIVE INVESTIGATIONS

A federal appeals court on Friday granted a temporary injunction
blocking implementation of a policy that would require scientists at
the Jet Propulsion Laboratory to undergo intrusive background
investigations as a condition of continued employment.

The requirement stems from President Bush's Homeland Security
Presidential Directive 12, under which all federal employees and
contractors are obliged to obtain secure forms of federal
identification.

As interpreted by NASA, this provision means that JPL employees must
not only provide verifiable proof of identity, which all are willing to
do, but must also accept an open-ended background investigation into
their personal conduct.

Under the NASA standard, according to critics, "any investigator" from
"any federal agency" would be permitted to collect "any information"
regarding the employee.

Dozens of JPL scientists said no.

A lower court rejected their request for an injunction against the
policy on October 3.  But the appeals granted it on October 5, until
further proceedings can be held.  For background on the case see:

     http://www.hspd12jpl.org/

"We cannot drive scientists into our laboratories," said President
Truman in a September 13, 1948 speech to the AAAS, "but, if we tolerate
reckless or unfair attacks, we can certainly drive them out."

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

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_______________________
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Project on Government Secrecy
Federation of American Scientists
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