Monday, December 6, 2010

IntLawGrrls

IntLawGrrls

Guest Blogger: Kathleen Clark

Posted: 06 Dec 2010 03:47 AM PST

It's IntLawGrrls' great pleasure to welcome Kathleen Clark (left) as today's guest blogger.
Kathleen is Professor of Law and 2010-11 Israel Treiman Faculty Fellow at Washington University School of Law, St. Louis, Missouri, where teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. For more than a decade, she has offered a course she created, on governmental ethics; in addition, she created a course on comparative whistleblowing, which she taught at the Summer Institute for Global Justice, Utrecht University, the Netherlands.
A 2004 Washington Post op-ed on the Department of Justice "torture memo," coauthored with our colleague Julie Mertus, led to Kathleen's testimony before Congress and her publication of "Ethical Issues Raised by the OLC Torture Memorandum," 1 Journal of National Security Law & Policy 455 (2005).
In her guest post below, Kathleen makes the case for the need for "someone in government will provide some clarification -- and some sanity" on the issue of WikiLeaks disclosures, an issue on which IntLawGrrls featured 2 guest posts last week, by Judge Patricia M. Wald (here) and by Professor Mary Ellen O'Connell (here).
Kathleen earned her B.A. and J.D. degrees from Yale University, and clerked for the Honorable Judge Harold H. Greene, U.S. District Court for the District of Columbia. She then served as counsel to the U.S. Senate Judiciary Committee, working on issues of white collar crime.
A member of the American Law Institute, Kathleen's an advisor to the institute's Project on Principles of Government Ethics. She's also a consultant to the Administrative Conference of the United States and past Chair of the National Security Law Section of the Association of American Law Schools.

Heartfelt welcome!

Information Security & Fear-Mongering about WikiLeaks

Posted: 06 Dec 2010 02:11 AM PST

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The response of the White House's Office of Management and Budget to the latest WikiLeaks document dump gives us a peek both into the sometimes surreal standards for dealing with information that the executive branch deems to be classified, and at the fear-mongering some government officials are engaging in.
According to CNN, on December 3rd, OMB instructed executive branch agencies to notify all government employees and contractors that they should not view any documents that are marked as classified using their work computers that access the web via non-classified government systems.
OMB distinguished "documents that are marked classified" from "news reports . . . that . . . discuss the classified material." Employees can use non-classified government systems to access news reports that include classified information, but must not use those systems to access the classified documents themselves. This distinction might seem silly to an outsider, but the government imposes special security measures for its computers that store classified documents, and takes pains to ensure that its computers without these security measures do not have any classified documents. This system of segregating classified documents is complicated and costly. But so far, so good.
OMB also suggested (somewhat ambiguously) that federal employees and contractors without the proper clearances and the "need to know" the information should not access Wikileaks' classified information. Specifically, OMB stated:
'Federal employees and contractors shall not access classified material unless a favorable determination of the person's eligibility for access has been made by an agency head or the agency head's designee, the person has signed and approved [a] non-disclosure agreement, [and] the person has a need to know the information . . . .'
(Here and in quotes below, italics added.)
At least one agency has gone further, asserting that government employees -- and prospective employees -- should not access WikiLeaks classified documents even from their home computers.
According to Democracy Now, the State Department instructed employees of the U.S. Agency for International Development as follows:

'Accessing the Wikileaks web site from any computer may be viewed as a violation of the SF-312 agreement.'
According to the SF 312 (a non-disclosure agreement), violation can result in termination of a security clearance and employment.
The State Department memo also warned USAID employees:

'Any discussions concerning the legitimacy of any documents or whether or not they are classified must be conducted within controlled access areas (overseas) or within restricted areas (USAID/Washington)... The documents should not be viewed, downloaded, or stored on your USAID unclassified network computer or home computer; they should not be printed or retransmitted in any fashion.'
In other words, just accessing the WikiLeaks website from a home computer could result in the loss of a security clearance and job.
Steven Aftergood, Director of the Federation of American Scientists Project on Government Secrecy -- a transparency activist who has been critical of WikiLeaks -- characterized the State Department memo as "insane."
It is not at all clear how accessing the WikiLeaks documents on a personal home computer would constitute a violation of an agreement not to disclose classified information. On the other hand, the SF 312 asserts that

'unauthorized retention . . . of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.'
This does not appear to be a one-off mistake by an overzealous State Department official. At least one government contractor has similarly warned its employees:

'Reviewing information on WikiLeaks or subsequent disclosures is strictly prohibited. ... [P]ersonnel are prohibited from accessing WikiLeaks whether on company-issued or on personal equipment.'
The fear-mongering applies not just to contractors but also to prospective government employees.
Democracy Now reported that the Office of Career Services at Columbia University's School of International and Public Affairs told its students that an alumnus working at the State Department

'recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.'
Maura Kelly, Assistant Dean for Career Development and Public Service at Boston University Law School, sent a message to BU students and alumni that

'[t]he documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).'
She specifically warned:

'DO NOT post links to the documents or make comments on any social media sites.'
Are these just over-reactions by people who are not familiar with the government's information security standards?
Or do these warnings reflect a concerted effort to prevent Americans from accessing and discussing the WikiLeaks documents that are now available on the web?
I hope that someone in government will provide some clarification -- and some sanity -- on this issue soon.

Watch Prop 8 arguments live

Posted: 06 Dec 2010 12:04 AM PST

From 10 a.m.-12:30 p.m. Pacific time today, a panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument on a trial court's August ruling that California's ban on same-sex marriage violates the U.S. Constitution.
Attorneys will argue in San Francisco before Judges Michael Daly Hawkins, N. Randy Smith, and Stephen Reinhardt -- the last of the 3 having denied the motion to disqualify himself filed by proponents of the ban, contained in the state's Constitution as a result of voters' approval of a 2008 ballot initiative, Proposition 8 (prior IntLawGrrls posts available here).
The Ninth Circuit has decided to permit live dissemination of the arguments in the case, Perry v. Schwarzenegger. The court's decision gives rise to any number of ways to watch the arguments live:
► It'll be streamed into auditoriums at many law schools (including my home institution, the University of California, Davis, School of Law); and
► It'll be broadcast on C-SPAN.
The appeals court also has set up a web database on the case. Quick skimming of briefs available there indicates one good bet: whatever the panel should decide, it's unlikely to cite foreign law or practice, as no litigant appears to have mentioned any.

On December 6

Posted: 05 Dec 2010 09:04 PM PST

On this day in ...
... 1949, while staying at his "winter White House" in Key West, Florida (left), U.S. President Harry S. Truman proclaimed United Nations Human Rights Day and called for it to be observed 4 days hence, and on every December 10 to follow. (photo credit) The date was chosen to mark the adoption of the Universal Declaration of Human Rights on December 10, 1948.

(Prior December 6 posts are here, here, and here.)
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