SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 26
March 28, 2003

FOIA VS. FISA

The proper boundaries of secrecy in domestic surveillance activities are the subject of an important Freedom of Information Act (FOIA) lawsuit brought by the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), and other groups.

In particular, the plaintiffs are seeking information about the impact of the USA Patriot Act, which increased government surveillance authority under the Foreign Intelligence Surveillance Act (FISA).

"The Patriot Act's surveillance provisions effect a dramatic expansion in the government's ability clandestinely to monitor people living in the United States, including citizens who are not suspected of contravening any law or of acting on behalf of a foreign power," the ACLU and EPIC state. "The public is entitled to know how the DOJ is using the vast surveillance powers that the Patriot Act authorizes."

Accordingly, the plaintiffs are requesting "aggregate, statistical data and other policy-level information that, if disclosed, would allow the public to evaluate the new powers conferred by the Patriot Act and the manner in which the government has used them." They stress that they do not seek "records pertaining to particular terrorism or criminal investigations [or] other information that could plausibly jeopardize national security."

A March 21 legal memorandum filed by David Sobel of EPIC and Ann Beeson, Jameel Jaffer and Arthur B. Spitzer of the ACLU spells out their argument with clarity and vigor:

The opposing argument that even the most general information sought by the FOIA requesters would threaten national security is presented by James A. Baker of the Justice Department Office of Intelligence Policy and Review:

Other selected case files and document releases may be found here:

WHAT MAKES DISCLOSURE SUSTAINABLE?

What are the conditions under which information disclosure policies attain their intended policy goals? Why do some disclosure policies thrive and others stagnate and fail?

That is the subject of an interesting new academic paper entitled "The Political Economy of Transparency: What Makes Disclosure Policies Sustainable?" by Archon Fung, Mary Graham and David Weil of the Institute for Government Innovation at the Kennedy School of Government at Harvard University.

The authors examine several cases of information disclosure policies that achieved differing levels of success in areas such as nutritional labeling, investment risks, toxic releases, and so on in an effort to model "the dynamics of transparency policies."

They identify a range of factors that can contribute to successful transparency, some of which are obvious (e.g., information must be "conveyed in a manner that is readily interpretable by end users") and others that are less so (e.g., "The more that significant groups of disclosers benefit from releasing information, the more improvement one can expect in the system.")

The authors do not specifically address national security secrecy and disclosure, but some of their conclusions can be readily extrapolated to that arena. For example, one could infer that the Central Intelligence Agency would be more likely to accept routine disclosure of the intelligence budget if the Agency were persuaded that such disclosure would make future reductions in intelligence spending more politically difficult -- which is probably true.

"The Political Economy of Transparency" by Fung, Graham and Weil, 56 pages, March 2003, is available here:

MOYNIHAN AND SECRECY

Daniel Patrick Moynihan devoted more time to thinking about government secrecy than any other elected official. Senator Moynihan, who died this week, made it respectable in elite circles to acknowledge official secrecy as a problem and, at least in the abstract, to criticize it.

Moynihan's own interpretation of secrecy was idiosyncratic and not entirely reliable.

He made much of the supposed fact that in the late 1940s Gen. Omar Bradley decided to keep the Venona intercepts of Soviet communications secret from President Truman. But the document he cites as proof does not say what he claims it says, a point that eluded many reviewers. (See Moynihan's book "Secrecy: The American Experience," Yale Univ Press, 1998, at pp. 70-72).

Senator Moynihan instigated and chaired the Commission on Protecting and Reducing Government Secrecy which issued a weighty report in 1997. The Commission membership could not have been more highly placed and influential including, aside from Moynihan, a sitting Director of Central Intelligence (John Deutch), the White House Chief of Staff (John Podesta), and the ultra-Conservative Senator Jesse Helms.

And yet the actual influence of the Commission's report was nil. Its legislative recommendations were incrementally reduced to nothing more than the creation of an advisory committee with no independent authority, designated the Public Interest Declassification Board, which was finally established in statute in the Intelligence Authorization Act for 2001. In a final insult, the membership of the Board was never named and so it has never met.

Nevertheless, the Report of the Commission on Protecting and Reducing Government Secrecy still stands as a tribute to Moynihan's commitment to this problem and it remains an outstanding introduction to the subject. A copy is posted here:

THE VICE PRESIDENT'S CLASSIFICATION AUTHORITY

President Bush's new executive order 13292 on national security classification, contrary to some reports, does not substantially alter the Vice President's classification authority.

It is true that the new order amends the definition of "original classification authority" to explicitly include "the Vice President in the performance of executive duties." This has led some observers to conclude that Vice President Cheney has now been given classification authority he did not previously possess.

In a well-meaning editorial critical of the new Bush order, the New York Times said that "for the first time, it gives the vice president the power to classify information." See "Secrecy: The Bush Byword," New York Times, March 28:

This is an error. The Vice President has long had Top Secret original classification authority, including the power to delegate that authority to others.

See this 1995 Presidential Order designating the Vice President and other senior officials as "original classification authorities":

IN THE NEWS

New scientific studies shed light on the genetic makeup of the anthrax bacterium, prompting the latest round of discussions as to whether such research poses a security threat and whether it should be published. The decision in this case was made in favor of publication, reports William J. Broad in "Key to Strains of Anthrax is Discovered," New York Times, March 27:

Polygraph testing is not going away. "Life scientists who work on sensitive government projects could find themselves hooked-up to polygraph machines in spite of continued criticism of the science behind such lie-detector tests," writes Peg Brickley in "Pseudoscience applied to scientists," The Scientist, March 26:

"Without robust, reliable access to government information, members of the public cannot function intelligently as citizens, cannot meaningfully participate in the policy process and cannot adequately evaluate the performance of their elected representatives or hold the government institutions accountable." Or so I opine in "The Bush Administration's Suffocating Secrecy" in the weekly Forward, March 28:

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

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