SECRECY NEWS
from the FAS Project on Government Secrecy
December 14, 2001

WHITE HOUSE ASSERTS EXECUTIVE PRIVILEGE

The Bush Administration formally invoked executive privilege for the first time yesterday to rebuff a congressional request for certain Justice Department records.

The action met with anger from congressional leaders, who said it impeded their ability to conduct oversight.

"This is not a monarchy," fumed Rep. Dan Burton, chair of the House Government Reform Committee, at a hearing yesterday. In September, Burton had subpoenaed the records, which concern the handling of several mafia prosecutions in the 1960s as well as campaign finance violations in the Clinton Administration.

"The Bush Administration appears to believe it is entitled to operate outside the public eye and outside the view of its elected representatives in Congress," said Rep. Henry Waxman, the ranking minority member on the Committee.

The President's December 12 memorandum to the Attorney General directing him to withhold the requested records from Congress is available here:

Related materials from the House Government Reform Committee may be found here:

and

BUSH ADMINISTRATION SECRECY POLICY

The new assertion of executive privilege is merely the latest step in an ongoing expansion of executive authority by the Bush Administration that has so far met with minimal resistance.

Some of this secrecy can be understood as a consequence of the military action in Afghanistan and related requirements for operational security. But much of it is gratuitous and unrelated to any threat. New restrictions on release of unclassified Reagan-era presidential documents, for example, appear to violate the letter of the law and have little basis beyond a predilection for official secrecy.

A compilation of Bush Administration documents and official statements on secrecy policy is available here:

BELLOWS REPORT ON WEN HO LEE

The Justice Department this week released the long-promised declassified version of the four volume, 800 page "Final Report of the Attorney General's Review Team on the Handling of the Los Alamos National Laboratory Investigation."

The May 2000 opus, also known as the "Bellows Report" after its lead author, reviews the ill-fated investigation into suspected espionage by former Los Alamos scientist Wen Ho Lee.

The report is a case study in the byzantine bureaucratic politics of counterintelligence. Its critique of the Justice Department's handling of requests for surveillance under the Foreign Intelligence Surveillance Act, among other things, continues to resonate today.

But almost everything about the Los Alamos investigation went as wrong as it could go.

"This was an investigation that from its first moments, indeed from its very first moments, went awry and never, in any real sense, recovered its equilibrium," the Report states.

Three of the twenty-two chapters of the heavily redacted Report, including the newly released Executive Summary in Chapter 1, may be found here:

Wen Ho Lee's memoir "My Country Versus Me" (with Helen Zia) has now passed through government classification review and will be published next month.

Also due next month is "A Convenient Spy: Wen Ho Lee and the Politics of Nuclear Espionage" by Dan Stober and Ian Hoffman, who produced much of the best reporting on this riveting case for the San Jose Mercury News (Stober) and the Albuquerque Journal (Hoffman).

INTELLIGENCE AUTHORIZATION APPROVED

The House of Representatives approved the conference report on the 2002 intelligence authorization act on December 12.

Intelligence Committee chairman Rep. Porter Goss found little reason for any self-criticism regarding the intelligence community's failure to provide effective warning against the terrorist attacks of September 11.

After all, Goss noted, the intelligence committees had recognized the threat from terrorism in several of their past authorization reports. See his comments on the House floor here:

This appears to be the first year in over a decade in which a classified intelligence budget total has gone unchallenged by any attempt in Congress to legislate declassification. The last such attempt, an amendment offered by Rep. Tim Roemer, was voted down in the House on May 23, 2000.

POSSE COMITATUS REVISITED

The emerging role of the military in "homeland security" is a delicate matter because it impinges on the traditional separation between civilian and military affairs that is a hallmark of American governance.

That separation is enshrined, for example, in the 1878 Posse Comitatus Act, which generally prohibits the use of military forces in civilian law enforcement.

Now, in the 2002 Defense Authorization Act, Congress has directed the Secretary of Defense to "conduct a study on the appropriate role of the Department of Defense with respect to homeland security":

In an October 12 letter, Senator John Warner invited the Pentagon to propose modifications to the Posse Comitatus Act. "Limited use [of military forces] beyond that permitted by existing law might strengthen the nation's ability both to protect against and to respond to events of the sort which we have recently undergone," wrote Warner.

The meaning and implications of the Posse Comitatus Act were examined with rigor and clarity in a 1997 law review article by Matthew Carlton Hammond in the Washington University Law Quarterly, available here:

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

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