SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 83
August 27, 2002

FOREIGN INTELLIGENCE SURVEILLANCE COURT OPENS UP

More information about the legal principles of domestic surveillance of suspected foreign intelligence and terrorist targets has become public in the past week than for many years before.

The proximate cause of the new disclosures was a Senate Judiciary Committee request to the Justice Department for a copy of a secret court ruling on surveillance practices. The Ashcroft Justice Department characteristically rebuffed the request.

But Senators Leahy, Specter and Grassley then turned to the famously secretive Foreign Intelligence Surveillance (FIS) Court, which authorizes surveillance and searches for counterintelligence and counterterrorism purposes. Remarkably, the court responded with a small flood of previously inaccessible documents.

Among them was a May 2002 FIS Court opinion which criticized and revised the Justice Department's latest procedures for sharing information between intelligence officials and law enforcement personnel.

While Congress had clearly intended to reduce the barriers to such information sharing, the Court found that the Justice Department procedures had instead nearly eliminated them. Further, the Court said the procedures seemed intended to abuse foreign intelligence surveillance authority for ordinary law enforcement purposes.

"The 2002 procedures appear to be designed to amend the law and substitute the FISA [i.e. the less demanding intelligence surveillance standards] for Title III electronic surveillances [i.e. the more demanding law enforcement standards]. This may be because the government is unable to meet the substantive requirements of these law enforcement tools, or because their administrative burdens are too onerous."

The Court also revealed that false statements had been made by the FBI in years past on more than 75 occasions in seeking surveillance authorizations.

See the Court's May 2002 Memorandum Opinion and Order here:

The New York Times today refers to the Justice Department's 2002 procedures that were reviewed by the Court as "secret regulations." But they are no longer secret, having been released by the Court last week (through the Senate Judiciary Committee).

See a copy of the March 2002 "Intelligence Sharing Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Conducted by the FBI" here:

On August 21, the Justice Department filed an appeal with the three-member Foreign Intelligence Surveillance Review Court, challenging the FIS Court's May ruling.

Far from being cowed by the May decision, the Department's appeal argues vigorously and rather persuasively that the FIS Court misinterpreted the requirements of last year's USA Patriot Act.

See the slightly redacted text of the Department's August 21 appeal here:

Much of the abundant commentary on the new court ruling and the Justice Department's appeal has been marred by extreme characterizations, erroneous claims and righteous indignation to the point that one almost despairs of having a serious conversation about the important issues involved.

But two critical editorials in the Washington Post have the unusual virtue of being informed by a reading of the actual documents. See "The Limits of Trust" (Aug. 23, 26):

APPEALS COURT BLASTS CLOSED IMMIGRATION HEARINGS

In the latest rebuke to Bush Administration secrecy policy, a federal appeals court ruled that "blanket closure" of deportation hearings for September 11 detainees held on immigration violations is not permissible.

Judge Damon J. Keith embellished his decision with several rhetorical flights on behalf of the First Amendment.

"Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment 'did not trust any government to separate the true from the false for us.'... They protected the people against secret government."

See the August 26 court ruling here:

A LITTLE LEGAL MISDIRECTION FROM THE CIA

Whenever it finally denies a Freedom of Information Act request, the Central Intelligence Agency always advises the requester that "you have the right to seek judicial review of this determination in a United States district court." But sometimes that's not true, and the requester effectively has no such right.

Last week, the CIA issued a final denial of a 1995 FOIA request for disclosure of the fiscal year 1995 and 1996 intelligence budget totals.

(The FY 1997 and 1998 figures were declassified several years ago, under pressure of litigation, but America's premier intelligence agency evidently believes that prior budget information -- dating back to 1947 -- becomes more sensitive with time and must remain classified.)

As usual, the CIA denial letter held out the possibility of judicial review. But in this case, it was false and misleading.

The problem is that there is a six year statute of limitations for filing Freedom of Information Act litigation. Because CIA had inexplicably drawn out its denial process for more than six years since the 1995 FOIA request became eligible for review, the right to seek judicial intervention had expired.

Any attempt to file suit at this point would be met with an immediate CIA motion for dismissal, citing the statute of limitations. (Secrecy News learned this the hard way earlier this year.)

On the other hand, filing suit before a final agency denial has been issued generally meets with the objection that the requester has "failed to exhaust administrative remedies."

Secrecy News wrote to the CIA Inspector General this week suggesting that it would be preferable if the CIA henceforth did not include false promises of a right of judicial review in its Freedom of Information Act correspondence.

Then maybe the Agency could think about developing reasonable classification criteria and a functional FOIA program.

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

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