from the FAS Project on Government Secrecy
Volume 2002, Issue No. 116
November 19, 2002


The Foreign Intelligence Surveillance Court of Review, in its first decision ever, sided with the Justice Department this week and reduced longstanding restrictions on cooperation between intelligence and law enforcement personnel in domestic counterintelligence and counterterrorism surveillance activities.

"The Court of Review's action revolutionizes our ability to investigate terrorists and prosecute terrorist acts," said Attorney General Ashcroft enthusiastically, and he immediately proceeded to announce a series of steps to implement the new policy. See his November 18 remarks here:

The new ruling bluntly rejected a lower court decision that rebuked the Justice Department for exceeding its authority.

The Court of Review, whose three members are all Reagan appointees, also took some swipes at the ACLU and other organizations that filed friend of the court briefs in support of the lower court position. (For example: the ACLU's "technique [of legal argument], to put it gently, is hardly an orthodox method of statutory interpretation.")

See the new order here:

The root of the matter, however, is not the court but rather the USA Patriot Act, hastily adopted last year in an act of legislative malpractice that resembles in some ways the passage of the malformed Homeland Security Act.

See a discerning Washington Post editorial on the new decision and the responsibility of Congress, "Chipping Away at Liberty," November 19, here:


The Justice Department told a federal appeals court on Monday that the names of hundreds of individuals who were arrested on immigration charges after September 11, 2001, must remain secret, contrary to a lower court ruling, because disclosing them would assist terrorists.

See "U.S. Says Revealing Names Would Aid Al Qaeda," by Neil A. Lewis, New York Times, November 19:

Paradoxically, however, a Justice Department spokeswoman released a press statement indicating that the secrecy was needed not for security against terrorists but in order to respect the detainees' personal privacy and that "all detainees ... can disclose their identity to the public at any time." See:

The case came before the court as a result of a request filed by a coalition of groups under the Freedom of Information Act. For more information see the website of the lead plaintiff, the Center for National Security Studies, here:


The use of military equipment and personnel from U.S. Northern Command to assist police in tracking down the sniper who terrorized Washington, DC last month may have been a violation of law and regulation, according to Eugene Fidell, a former Coast Guard judge advocate general and expert in military law.

At issue are the 1878 Posse Comitatus Act, which generally prohibits the use of military forces for law enforcement purposes, and several other statutes and implementing regulations.

Now that the sniper suspects have been apprehended and the crisis has passed, this would be an appropriate moment to consider the facts of the matter, the lessons learned and the need, if any, for legislative or regulatory changes. But there is little sign of official interest in any such deliberation.

Mr. Fidell's views and related issues were reported at some length by Elaine M. Grossman in "Former JAG: Military Aid in DC Sniper Pursuit May Have Broken Law," Inside the Pentagon, November 14, reposted with permission here:


After author David Wise wrote in a New York Times op-ed that the CIA had attempted to censor his book, the CIA press spokesman issued an unusual statement, blasting Wise and his book, and denying the censorship charge (SN, 11/11/02).

Mr. Wise replies in a statement posted on the web site of the Counterintelligence Centre here:


The U.S. State Department is sponsoring an international conference this week for officials from over 35 countries on "E-Government," which generally refers to the practice of making government information and services available online.

"Properly implemented, e-government can improve government efficiency, increase transparency, and provide a more welcoming atmosphere for investment," according to a State Department press release:

Meanwhile, Congress has just passed an "Electronic Government Act" that promises to enhance the online availability of government information in this country.

See "E-Gov Act on Way to President" by Bill Matthews, Federal Computer Week, November 18:


A vigorous and independent news media sector can boost economic development around the world by promoting good government and empowering citizens.

That straightforward but still challenging thesis is fleshed out and validated in a new book entitled "The Right to Tell: The Role of Mass Media in Economic Development" published November 7 by the World Bank.

The book's nineteen chapters discuss principles of transparency and secrecy, and provide media critiques, as well as case studies from a number of developing countries, written by an unusual mix of contributors including Nobel laureates Joseph Stiglitz and Gabriel Garcia Marquez, journalist Adam Michnik, as well as other less celebrated but equally thoughtful writers and researchers.

For further information on "The Right to Tell" see:

Secrecy News welcomes review copies of books on information policy and national security.


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

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