SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 82
July 21, 2006

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

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EVOLUTION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

The Foreign Intelligence Surveillance Act, the 1978 law that is supposed to govern surveillance of foreign intelligence targets within the U.S., has had an unusually dynamic legislative history. It has been modified in a hundred ways on at least a dozen occasions.

Despite the demonstrated adaptability of this statute, the Bush Administration chose to conduct its NSA Terrorist Surveillance Program outside of the legally binding FISA framework and has not sought to amend it.

"Abiding by FISA does not mean clinging to [an obsolete] 1978 structure," emphasized Rep. Jane Harman, ranking member of the House Intelligence Committee at a hearing this week. "FISA has been modernized."

"Each time the Administration has come to Congress and asked to modernize FISA, Congress has said 'yes'," she recalled.

"Congress extended the time for obtaining emergency warrants so that surveillance can begin 72 hours before the government obtains a warrant. Congress expanded the authority to conduct 'trap and trace' surveillance on the Internet. Congress expanded the ability to get 'roving John Doe' wiretaps for terrorists who switch cell phones."

"The surveillance the President wants to do can and must be done completely under the current FISA system," Rep. Harman concluded.

She asked the Congressional Research Service to provide a listing of prior amendments to the FISA, which turned out to be a 29 page tabulation.

See "Amendments to the Foreign Intelligence Surveillance Act (FISA), 1994-2006," Congressional Research Service, July 19:

The prepared testimony from a July 18 House Intelligence Committee hearing on "Modernization of the Foreign Intelligence Surveillance Act" is here:

The Senate Judiciary Committee has scheduled a hearing on "FISA for the 21st Century" on July 26.

COURT DENIES STATE SECRETS CLAIM IN WIRETAPPING CASE

In a rare judicial denial of an official "state secrets" claim, a federal court yesterday rejected a government assertion that a lawsuit against AT&T alleging illegal wiretapping should be dismissed because it would place state secrets at risk.

In May, Director of National Intelligence John Negroponte formally asserted the state secrets privilege in support of a motion to dismiss the lawsuit brought by the Electronic Frontier Foundation.

But instead of simply deferring to the executive branch, Judge Vaughn R. Walker did his own analysis of the matter.

"The first step in determining whether a piece of information constitutes a 'state secret' is determining whether that information actually is a 'secret'," he wrote.

He went on to conclude, based on public statements by the President and other officials, that the state secrets privilege was inapplicable in this case.

"Because of the public disclosures by the government and AT&T, the court cannot conclude that merely maintaining this action creates a 'reasonable danger' of harming national security."

"It is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it.... To defer to a blanket assertion of secrecy here would be to abdicate that duty...."

The court's rejection of unconditional judicial deference is noteworthy. Although the executive branch's assertion of the state secrets privilege has been denied on at least four occasions in the past, those denials seem to have been based on technical defects or procedural failings rather than a substantial judicial assessment of the merits of the claim.

SEEKING TRANSPARENCY IN FEDERAL FUNDING

A new legislative initiative would require the government to disclose and to publish online all federal contracts, grants, and other forms of spending.

"I like to think of this bill as 'Google for Government Spending'," said Senator Tom Coburn (R-OK).

"The concept behind the bill is really quite simple: Put information on government spending out there for all to see and greater accountability will follow. It will also change the expectations of those receiving funds that they will know in advance that the information will be public," he said.

The bill has neatly circumvented the usual partisan divisions and has won bipartisan support and co-sponsorship from the likes of Sen. Barack Obama (D-IL) and Sen. John McCain (R-AZ), and endorsements from Greenpeace and the Heritage Foundation.

A July 18 Senate hearing on the proposal (S. 2590) featured statements from Senators Coburn, Obama and McCain, and testimony from Gary D. Bass of OMB Watch and Mark Tapscott of the Washington Examiner and the blog Tapscott's Copy Desk. See their prepared statements here:

The Los Angeles Times editorialized on the bill in "Googling the Feds," July 21:

DOD DOCTRINE ON MILITARY DECEPTION

The role of deception in military operations is illuminated and elaborated in a new Department of Defense doctrinal publication.

Military deception refers to "those actions executed to deliberately mislead adversary decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission."

The principles of deception and their execution are described in some detail in the 79 page publication.

Some types of deception are "perfidious" and are prohibited by the laws of war.

"Acts of perfidy include, but are not limited to: feigning surrender or waving a white flag in order to lure the enemy into a trap; misuse of protective signs, signals, and symbols in order to injure, kill, or capture the enemy;" and so on.

Even when properly executed, a deception operation or cover story "may fail for many reasons. It is possible that the target will not receive the story, not believe the story, be unable to act, be indecisive even if the story is believed, act in unforeseen ways, or may discover the deception."

Furthermore, the document explains, one must assume that the enemy is also engaged in deception, creating the need for "counterdeception" programs, both defensive and offensive.

Offensive counterdeception "focuses on forcing an adversary to expend resources and continue deception operations that have been detected by reinforcing the perception that friendly forces are unaware of them."

The new publication concludes with a series of maxims summarizing central lessons of experience in the field, and a suggested reading list.

See "Military Deception," Joint Publication 3-13.4, July 13, 2006:

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

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