Speakers at ABA National Security Law Conference Confront NSA Surveillance Program and Leaks of Classified Information to the Press
Posted by Randy Gainer
Speakers at the 16th annual review of National Security Law, held November 30-December 1, 2006, in Washington, D.C., addressed topics ranging from accountability for actions by private security contractors on the battlefield to civil litigation against terrorists and their bankers. Approximately 440 lawyers attended the conference, which was sponsored by the ABA Committee on Law and National Security, by the Center for National Security Law at the University of Virginia School of Law, and by the Center on Law, Ethics, and National Security at Duke University School of Law. Conference materials, which include several insightful papers, are available online.
In a speech at the conference, Representative Jane Harmon, the out-going ranking member of the House Intelligence Committee, described Congressional efforts to get executive branch officials to brief the members of the House and Senate Intelligence Committee about the NSA’s domestic surveillance program. A video and audio copy of her remarks is available online. She said that only after the Senate Intelligence Committee threatened to delay confirmation hearings regarding General Michael Hayden’s nomination to serve as CIA Director did executive officials agree to brief the Intelligence Committees about the NSA program. Ibid. at 15:30
Having received the classified briefing about the NSA program earlier this year, Representative Harmon said “As one of the few people outside the White House and NSA briefed into this program, I assure you that the program can be conducted pursuant to the Foreign Intelligence Surveillance Act.” Id. at 15:51. Given that Representative Harmon has heard classified details about the NSA program that the Bush Administration has refused to disclose publicly, including in the dozens of pending lawsuits challenging the NSA program, her assertion that program could be conducted within FISA constraints is important. It directly contradicts the Administration’s claims that the NSA cannot run the program in a manner that complies with FISA.
Two other speakers at the conference exchanged starkly opposing views on the issue of whether the media should ever disclose classified information. Dana Priest, the Washington Post reporter who won a Pulitzer Prize for her story about the CIA’s secret prisons, said that it is sometimes essential for the media to publish secrets revealed to reporters by government sources. See conference video, at 8:20. Democracy cannot function, she said, unless the media sometimes reveals facts the government tries to suppress. She described the process she and Post editors followed before the CIA prisons story was published, which included calling the CIA’s public relations office, describing key facts in the draft story, and allowing CIA officials to identify any facts they believed would compromise national security if the facts were revealed. In response to CIA requests, she said, the Post did not identify in the printed story the countries in which the secret prisons were located. The Senior Counselor to the CIA Director, Robert Dietz, speaking on the same panel with Ms. Priest, asserted that the media’s “finders keepers, losers weepers” view of classified information is irresponsible. See conference video, at 50:20. The media should defer, he said, to those elected or appointed to decide when classified information should be published, he said. Id. at 53:30.
