SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 8
January 20, 2006

JUSTICE DEPT ISSUES WHITE PAPER ON NSA SURVEILLANCE

The Department of Justice renewed its legal defense of warrantless domestic intelligence surveillance by the National Security Agency in a 42 page white paper transmitted to Congress yesterday.

The white paper essentially reiterates at greater length the previous defenses articulated by the Bush Administration: (1) the surveillance action was authorized by Congress when it passed the 2001 resolution on use of military force against al Qaeda; and (2) the President has inherent authority to conduct such surveillance in any case. Both assertions are widely disputed.

"The President -- in light of the broad authority to use military force in response to the attacks of September 11th and to prevent further catastrophic attack expressly conferred on the President by the Constitution and confirmed and supplemented by Congress in the AUMF [authorization for use of military force] -- has legal authority to authorize the NSA to conduct the signals intelligence activities he has described. Those activities are authorized by the Constitution and by statute, and they violate neither FISA nor the Fourth Amendment," the document concludes.

See "Legal Authorities Supporting the Activities of the National Security Agency Described by the President," Department of Justice White Paper, January 19, 2006:

THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS

When he signed the 2006 Defense Appropriations Act, which included a prohibition against torture of detainees in U.S. custody, President Bush issued a signing statement implying that he could disregard the new prohibition in his capacity as commander in chief.

"The executive branch shall construe [the statute], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief," he wrote in the December 30, 2005 statement on H.R. 2863.

The use of Presidential signing statements to create a kind of quasi-legislative history intended to influence future judicial rulings is a relatively new and increasingly controversial phenomenon.

"So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon -- if indeed it existed at all -- before the Reagan and Bush Presidencies," according to a 1993 memorandum from the Department of Justice Office of Legal Counsel.

"The Reagan and Bush Administrations made frequent use of Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the courts could rely in construing such language."

Among other problems with this practice, "it is arguable that 'by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power'."

See "The Legal Significance of Presidential Signing Statements," prepared by Assistant Attorney General Walter Dellinger, November 3, 1993:

NSA: REDACTING WITH CONFIDENCE

The National Security Agency has issued new guidance to assist officials in redacting (censoring) documents in Microsoft Word format and producing unclassified Adobe Portable Document (PDF) files without inadvertently disclosing sensitive information.

"MS Word is used throughout the DoD and the Intelligence Community (IC) for preparing documents, reports, notes, and other formal and informal materials. PDF is often used as the format for downgraded or sanitized documents."

"There are a number of pitfalls for the person attempting to sanitize a Word document for release."

For example, "As numerous people have learned to their chagrin, merely converting an MS Word document to PDF does not remove all [sensitive] metadata automatically."

"This paper describes the issue, and gives a step-by-step description of how to do it with confidence that inappropriate material will not be released."

See "Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF," National Security Agency, December 13, 2005:

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

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