SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 21
February 16, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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CONFRONTING THE WHITE HOUSE'S "MONARCHICAL DOCTRINE"

More and more Americans of all political stripes are concerned that the Bush Administration has exceeded its legal authority by conducting intelligence surveillance outside of what the law permits.

Anxiety over illegal surveillance is heightened by the prospect that an ideologically subservient Congress may not insist on the primacy of law, but will simply defer to the Administration, or authorize whatever the White House wishes.

"The administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act" is a "monarchical doctrine," wrote columnist George Will today.

"Monarchical" is a curse word in conservative thought, and for an American conservative monarchy is a provocation to revolutionary opposition.

"We cannot continue to claim we are a nation of laws and not of men if our laws, and indeed even the Constitution of the United States itself, may be summarily breached because of some determination of expediency or because the President says, 'Trust me'," said Sen. Robert Byrd in a Senate floor statement yesterday.

"I plead with the American public to tune in to what is happening in this country. Please forget the political party with which you may usually be associated and, instead, think about the right of due process, the presumption of innocence, and the right to a private life."

"This President, in my judgment, may have broken the law and most certainly has violated the spirit of the Constitution and the public trust," Sen. Byrd said.

In an unusual rebuke, the American Bar Association this week found it necessary to urge President Bush to comply with the law.

"The American Bar Association calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees."

See the report of the American Bar Association Task Force on Domestic Surveillance in the Fight Against Terrorism:

THE VICE PRESIDENT'S DECLASSIFICATION AUTHORITY

"Is it your view that a Vice President has the authority to declassify information?" Vice President Cheney was asked yesterday by Fox News' Brit Hume.

"There is an executive order to that effect," replied the Vice President.

This was a simple answer to a straightforward question, but the matter is actually a bit more complicated.

The executive order in question is E.O. 13292 on classified national security information, issued by President Bush in March 2003:

It states in section 1.3 that "The authority to classify information originally may be exercised only by: (1) the President and, in the performance of executive duties, the Vice President; (2) agency heads and officials designated by the President in the Federal Register..."

Remarkably, the phrase "and, in the performance of executive duties, the Vice President," which dramatically elevates the Vice President's classification authority to that of the President, was added to the executive order in 2003.

Prior to that, the Vice President only had classification authority comparable to that of an agency head, having been delegated such authority in a 1995 presidential order:

So much for classification authority. What about declassification?

Declassification authority is defined in Section 6.1(l) of E.O. 13292. It is granted to: "(1) the official who authorized the original classification...; (2) the originator's current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official."

So the Vice President has authority to declassify anything that he himself classified. He also clearly has authority to declassify anything generated in the Office of the Vice President, which he supervises.

But is the Vice President, like the President, "a supervisory official" with respect to other executive branch agencies such as the CIA? Did the 2003 amendment to the executive order which elevated the Vice President's classification authority also grant him declassification authority comparable to the President's?

"The answer is not obvious," said one executive branch expert on classification policy.

ENERGY DEPARTMENT DECLASSIFICATION PLAN

The Department of Energy expects to complete the declassification review of 12.7 million pages of its 25 year old historically valuable permanent records by December 31, 2006, the Department advised the Information Security Oversight Office last month.

The January 2006 Department of Energy Declassification Plan was obtained under the Freedom of Information Act by Michael Ravnitzky. A copy is posted here (1.1 MB PDF file):

IN THE NEWS

"Since the Sept. 11 attacks, the number of insiders alleging wrongdoing in government - either through whistle-blower channels or directly to the press - has surged, as have reprisals against them."

See "A surge in whistle-blowing ... and reprisals" by Gail Russell Chaddock, Christian Science Monitor, February 16, 2006:

"If the Bush administration's interpretation of espionage law is upheld, then everyone is breaking the law, all the time." That's the conclusion that emerges from the Bush Administration's unprecedented use of the Espionage Act to prosecute non-government employees for mishandling classified information.

See "You're a Spy" by Fred Kaplan, Slate, February 15, 2006:

Jack Shafer sorts out what appeared to be an early post-9/11 disclosure of warrantless domestic surveillance, and takes a poke at DCIA Porter Goss for flogging discredited leak allegations.

See "NSA Scoop or Just Bad Writing?" by Jack Shafer, Slate, February 15, 2006:

HEARING ON ABLE DANGER

The ABLE DANGER data mining program was the subject of a House Armed Service Committee hearing yesterday featuring testimony from Under Secretary of Defense for Intelligence Stephen A. Cambone.

"Members must decide for themselves what to believe from the testimony presented today -- there will be some inconsistencies," cautioned Rep. Jim Saxton, who co-chaired the hearing.

The prepared testimony from that February 15 hearing is posted here:

CRS ON DATA MINING

A recently updated report from the Congressional Research Service addresses data mining -- what it is, what it can and cannot do, and some of the controversies that have arisen around it.

A copy of the CRS report was obtained by Secrecy News.

See "Data Mining and Homeland Security: An Overview," updated January 27, 2006:

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

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