Law of Secrecy

"While all deception requires secrecy, all secrecy is not meant to deceive" - Sissela Bok

UNC Presses Attack on Whistle-Blower in Fake Classes Scandal - Businessweek

Last week, experts hired by the University of North Carolina at Chapel Hill released several reports that rebut allegations made by an athlete tutor, Mary Willingham. In 2011, Willingham provided information to a reporter that alleged that the school created “fake classes” for student athletes that did not require student attendance and only required a short written paper for full credit. The reports focused on Willingham’s claims that many freshmen athletes had low reading proficiency. This article in Bloomberg Businessweek explains why the expert reports are unfair:

Rather than grapple directly with how university employees and instructors launched on this egregious adventure of keeping scholarship athletes academically eligible by means of fraud, UNC’s leadership has gone after Willingham personally. Employing a classic kill-the-messenger playbook, top officials have questioned her credibility and demoted her. On Friday the university reiterated previously raised questions about unpublished research she did on one group of incoming Tar Heel athletes whose reading skills she concluded were nowhere close to college level.

UNC released a trio of reports commissioned from outside experts to rebut Willingham’s findings on freshman athlete reading levels. These experts, UNC said, did not find evidence to support Willingham’s “claims about widespread low literacy levels” among football and basketball recruits who had been screened for learning disabilities. Instead, the outside reviewers “determined that the majority of the students referenced in the public claims scored at or above college entry level” on the reading vocabulary test Willingham used. 

When I interviewed Willingham, she stood behind her work and said Dean had mischaracterized it. The diagnostic test on which she relied was administered by a UNC-hired Ph.D. psychologist, she pointed out. The university has since terminated the contract of that psychologist—a move that raises suspicions in my mind.

Willingham told me her work included a writing test as well as the vocabulary questions assessed by the outside experts. And her evaluation incorporated athletes’ SAT and ACT entrance exams, she said. As best I can tell, UNC’s hired experts weren’t asked to look at all the information on which Willingham based her conclusions. 

-JG

Guantánamo judge to CIA: Disclose ‘black site’ details to USS Cole defense lawyers - Guantánamo - MiamiHerald.com

A military judge overseeing the USS Cole bombing case is ordering the CIA to hand over classified documents to the defense team. Included in the documents is information regarding the CIA’s detention and interrogation program:

The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications,” interrogation notes and cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.

It covers so many of the agency’s closely guarded secrets that the source predicted “the prosecution would probably take an interlocutory appeal,” meaning rather than release the information Pentagon prosecutors will ask a military commissions appeals court to overrule Pohl.

-JG

Pulitzer Prize Reignites Controversy Surrounding NSA Leaks

There were many reactions on Monday to the announcement that the Pulitzer Prize for public service journalism was awarded to the Washington Post and the Guardian for their coverage of the NSA leaks. This article in Politico dubbed the award “Edward Snowden’s Prize.” According to the article, Snowden himself claimed the award was a sort of vindication for his controversial leak of thousands of NSA classified documents. The New Yorker praised the decision, calling it “a defining case of the press doing what it is supposed to do.”

Benjamin Wittes at Lawfare Blog (with which this article in The Atlantic completely disagreed) explained why he believes the Pulitzer Board got it wrong:

The Pulitzer Board’s citation to these two organizations has a faintly comic air. The Post the board congratulates not merely for “its revelation of widespread secret surveillance by the National Security Agency” but for “authoritative and insightful reports that helped the public understand how the disclosures fit into the larger framework of national security.” For the Guardian, by contrast, the board rather conspicuously omits any reference to authority or to insight, noting only that the paper had “help[ed] through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.”

The latter is at least true. The commendation to the Post, by contrast, involves an assertion of fact that is, at a minimum, highly contestable. The Post got big things wrong in the stories the board honors. It reported that NSA has access to the servers of internet companies—a fact it then changed in the story without running a correction, for example. It grossly misreported, using entirely true facts, on a compliance audit so as to present it as suggesting nearly the opposite of what it actually shows. And it frequently reported on the most routine sort of overseas intelligence collection, collection of precisely the sort the law authorizes, in breathless tones suggestive of gross impropriety. 

This op-ed at the Los Angeles Times questioned whether the newspapers were reckless with some of the information they published regarding the NSA revelations:

Were the newspapers’ judgments infallible? I still have some of the qualms I expressed back in January. I’m not sure I would have published every detail in those stories. Some of the programs they revealed included legitimate espionage against China and Russia. Not all of them posed major threats to the privacy rights of American citizens. (Non-Americans like German Chancellor Angela Merkel? That’s another story.)

-JG

Inside the FBI's secret relationship with the military's special operations - Washington Post

Last week the Washington Post had this article on the FBI’s role post-9/11 and its secret operations alongside the Joint Special Operations Command (JSOC). The FBI is starting to come forward about these secret missions as the war in Afghanistan comes to a close.

The FBI’s transformation from a crime-fighting agency to a counterterrorism organization in the wake of the Sept. 11, 2001, attacks has been well documented. Less widely known has been the bureau’s role in secret operations against al-Qaeda and its affiliates in Iraq and Afghanistan, among other locations around the world.

With the war in Afghanistan ending, FBI officials have become more willing to discuss a little-known alliance between the bureau and the Joint Special Operations Command (JSOC) that allowed agents to participate in hundreds of raids in Iraq and Afghanistan.

The relationship benefited both sides. JSOC used the FBI’s expertise in exploiting digital media and other materials to locate insurgents and detect plots, including any against the United States. The bureau’s agents, in turn, could preserve evidence and maintain a chain of custody should any suspect be transferred to the United States for trial.

-JG

FOIA Logjam

Today’s National Law Journal has an interesting op-ed about a secret White House memo that is causing delay throughout the Executive Branch when agencies receive FOIA requests. According to the article, the White House has secretly demanded that all FOIA requests for records involving “White House equities” must be forwarded to the White House for review, which has caused significant delay. “White House equities” is not defined, but the article asserts that it is being used to give special review to requests that might involve politically-sensitive issues. It is not clear whether those requests were also ultimately denied, or whether there was only a delay to allow for the extra review.

When President Barack Obama issued a memorandum on his first day in office on the Freedom of Information Act encouraging transparency, it was a promising first step toward being the “most transparent administration in history.” Three months later, however, the president’s chief lawyer secretly advised government agencies to send to the White House all records involving “White House equities” that are identified in response to any document request, FOIA or otherwise.

The largely elusive and undefined term “White House equities” greatly expanded what the White House has access to. Previously its access was limited to documents that originated within the White House.

Consequently, federal agencies are sending politically sensitive requests to the White House for review, delaying the release of records to the media, public requesters and even to Congress, violating the letter and spirit of FOIA.

I hope this gets some more national attention to put more pressure on the Obama administration to live up to its pledge to be the “most transparent” in history, a pledge that many FOIA-wonks have argued has not been met.

-RM

.@schmidlibrary wins the #T4T suggestion battle-in honor of my CLE on #Snowden: Informer by Snow[den] @TracySWarren @molliecox

(Source: Spotify)

Following Massive Recall, GM Implements New Whistleblower Program

Following the massive recall of 2.6 million vehicles for a defective ignition switch, General Motors is implementing regulations that would encourage employees to come forward if they see something that may raise concerns regarding consumer safety. According to this article in Forbes, GM is introducing a new program called “Speak Up for Safety” that recognizes employees for coming up with new ideas that would contribute to consumer safety as well as recognize employees who raise concerns if they believe something may impact consumer safety.

The program is “to recognize employees for ideas that make vehicles safer, and for speaking up when they see something that could impact customer safety,” she said in the release.

Speak Up for Safety, GM said, “is intended to remove perceived and real barriers to candid conversations between employees and their leaders as a step to foster a ‘safety first’ culture.”

“Reporting issues only matters if there is follow-up,” GM said.

-JG

When Is There Too Much Transparency?

When is there too much transparency? Perhaps when there is information overload and the recipients of the information can’t handle it, especially if the costs of producing the information are high. With this in mind, the SEC is looking at revising the rules regulating the type and amount of information public companies are required to disclose. The National Law Journal has a great article about the potential benefits of this process.

The U.S. Securities and Exchange Commission is embarking on a much needed reform of public-­company disclosure rules, largely to answer a simple yet critical question: What type of information do investors really want to make informed investment decisions?

Of course, it’s a question often asked by commissioners and staff. The SEC’s charge is to ensure that investors receive material information about public companies in a timely manner. But the commission’s point is to determine whether the amount of information available to investors can be streamlined, not expanded.

When Congress passed the Jumpstart Our Business Startups Act (JOBS Act) in 2012, Section 108 required the SEC to take a comprehensive look at Regulation S-K, the disclosure rules for various SEC filings used by public companies. The mandate was to look at reporting requirements as they relate to emerging-growth companies. Instead, the staff chose to do a full review for all public companies. As that review went on, the commissioners acknowledged in public speeches what had been apparent for years: Investors are burdened by “information overload.” The disclosures companies are required to produce have become chock-full of minutia, forcing investors to burrow into a daunting amount of published information to find those details most relevant to their decisions.

-RM

We Need to Talk about the Test - New York Times

The principal of a public school in Brooklyn, NY, Elizabeth Phillips authored this op-ed published in the New York Times yesterday, bringing attention to a gag order imposed on all teachers administering exams in New York due to a contract with the education publishing service, Pearson Education:

So teachers watched hundreds of thousands of children in grades 3 to 8 sit for between 70 and 180 minutes per day for three days taking a state English Language Arts exam that does a poor job of testing reading comprehension, and yet we’re not allowed to point out what the problems were.

This lack of transparency was one of the driving forces that led the teachers at my school to call for a protest rally the day after the test, a rally that attracted hundreds of supporters. More than 30 other New York City schools have scheduled their own demonstrations.

Two years ago, the New York Times published this story on complaints of errors found in an Eighth Grade Pearson English exam, dubbed “Pineapple-gate” for the story of a talking pineapple. Due to the 30-plus errors in the exam and the public outcry, the New York Education Department decided not to include the section in the scoring of  the exams.

Ms. Phillips could not use specifics in describing the exams, but in general terms, described them as “confusing, developmentally inappropriate and not well aligned with the Common Core standards.”

-JG

CIA’s Conflict of Interest in Declassifying Senate Report on Interrogation Program

Steven Aftergood posted on his blog, Secrecy News, yesterday addressing the recent controversy surrounding the CIA, the Senate Intelligence Committee and reports on the CIA’s interrogation program. Last week, the Senate approved releasing its own report, and Aftergood points to the conflict of interest that will arise:

[I]n an obvious conflict of interest, the review is expected to be performed by the CIA itself.

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Aftergood offers two options to mitigate the conflict:

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board’s statutory purpose is, among other things, “To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”

-JG