SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 10
February 6, 2003

TRANSCRIPT SHINES LIGHT ON FISA REVIEW COURT

The Foreign Intelligence Surveillance Court of Review (FISCR), a hitherto unknown branch of the judiciary, was convened last September for the first time. The transcript of that closed session provides new insight into the structure of the Court and its conduct.

At issue was the Justice Department's appeal to overturn a lower court decision that limited the government's ability to share surveillance information between intelligence and law enforcement personnel.

The hearing was extraordinary not only because the Court had never met before, but also because it was an ex parte proceeding, i.e. only Justice Department representatives and the panel of three federal judges were present.

"This is a strange proceeding because it is not adversarial," observed FISCR presiding Judge Ralph B. Guy, Jr. "If one were to just read the transcript of this hearing today, one might think that the adversary, if there was one, is [the Foreign Intelligence Surveillance Court], the lower body in this matter" whose decision was being appealed. (Transcript, page 100).

Indeed. The record of the hearing suffers substantively from the absence of an articulate opposing view. And despite some sparring on technical issues, the judges generally assumed a servile posture toward the executive branch, even consulting the Justice Department on how to handle its critics.

"Do you have a view what we should do with amicus briefs?" asked Judge Laurence H. Silberman, referring to the unsolicited pleadings submitted by civil liberties groups in support of the lower court decision.

"Our position is we have no objection to the Court receiving amicus briefs," Solicitor General Ted Olson generously responded. "In fact, I think it's probably good that the Court receive amicus briefs." (Pp. 67-68). It did so.

The FIS Court of Review granted the Justice Department appeal in a November 18 decision.

The transcript of the September 9 hearing was declassified at the request of Senator Patrick Leahy. A copy was obtained by Secrecy News and is available here:

REPORT ON PATRIOT ACT OVERSIGHT

The Justice Department Office of Inspector General (OIG) received hundreds of complaints alleging "Patriot Act-related civil rights or civil liberties" violations during the last six months of 2002, but narrowed these down to 33 "that raised credible Patriot Act violations on their face," according to a new Inspector General report to Congress.

"These allegations ranged in seriousness from alleged beatings of detainees to INS Inspections staff allegedly cursing at airline passengers," the report said. As a result, several new OIG investigations have been initiated, while others have been closed, as detailed in the new report.

Meanwhile, the OIG is also conducting an ongoing evaluation of alleged civil rights and civil liberties abuses of September 11 detainees. "The OIG is close to completing the draft of its report describing the results of this review [and] intends to issue a public report describing its findings soon."

See the Second "Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act," submitted by Inspector General Glenn A. Fine on January 22, here:

POWELL AT THE UN: A LANDMARK IN DISCLOSURE POLICY

Secretary Colin Powell's February 5 presentation to the United Nations Security Council -- in which he released U.S. intelligence imagery, audio clips of intercepted Iraqi conversations, and reports of defectors and other intelligence sources -- was a landmark in national security information disclosure policy.

Although the circumstances of the brewing confrontation with Iraq are extraordinary, the official decision to disclose information of the highest classification levels in this instance inevitably sets a precedent for possible future declassification actions. It also provides a reference point for evaluating the sometimes fatuous claims of national security sensitivity that are offered in the normal course of affairs.

See "Telling Secrets: Not Just What, but How" by Dana Priest, Washington Post, February 6:

UK REPORT ON IRAQI SECURITY APPARATUS

The Office of the Prime Minister of Great Britain released a report recently on Iraqi efforts to obstruct the UN weapons inspection process.

The new report contrasts with Secretary Powell's presentation to the UN in that it is completely unsourced and undocumented and, therefore, less compelling. However, the report notably provides a useful, quasi-official description of Iraqi security and intelligence agencies.

See "Iraq: Its Infrastructure of Concealment, Deception and Intimidation," dated January 2003, here:

CLINTON WAIVES CONFIDENTIALITY

Former President Clinton has waived his right to withhold Presidential records reflecting confidential advice, the Associated Press reported, in a move that should expedite public access to such records.

"I believe that the more information we can make available to scholars, historians and the general public, the better informed people will be about the formulation of public policy and the decision-making process at the White House," Clinton said in response to written questions.

See "Ex-President Clinton to Reveal Advice Info" by Brian Skoloff, Associated Press, January 31:

Under Executive Order 13233 of November 1, 2001, however, President Bush asserted a right to block the release of records from prior Administrations even if a past President authorized their disclosure.

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

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