SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 122
December 12, 2007

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

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DID CIA VIOLATE THE FEDERAL RECORDS ACT?

Even if the videotapes of interrogation sessions that were destroyed by the Central Intelligence Agency showed nothing illegal or untoward, their destruction could still be a violation of the federal law which requires the preservation of official records, suggested Rep. Henry Waxman (D-CA) yesterday.

Rep. Waxman asked Archivist of the United States Allen Weinstein to render a judgment as to whether the destruction of the videotapes was consistent with the law.

"I would like your opinion on whether the CIA's destruction of these videotapes was in accordance with the Federal Records Act and your implementing regulations," Waxman wrote on December 11.

CIA's records management failures, including inadequate preservation of audiovisual records, are a longstanding concern of the National Archives and Records Administration.

"Videos stored in the ARC [CIA Agency Records Center] are in danger of catastrophic loss due to tape binder failure and/or fungal contamination," the Archives found in a 2000 audit of CIA records management practices.

And some CIA employees seemed oblivious to the laws governing record preservation, NARA reported.

"Some of the agency personnel who create and maintain special media do not recognize them as federal records that may be disposed only in accordance with NARA-approved schedules," the Archives audit found.

The 2000 audit of "Records Management in the Central Intelligence Agency," cited in Rep. Waxman's letter, was obtained by the Federation of American Scientists under the Freedom of Information Act and may be found here:

Sen. Joe Biden (D-DE) yesterday asked the White House to explicitly confirm that a White House directive to preserve records related to the destruction of CIA videotapes encompassed all White House records.

"In light of the Office of the Vice President's record of fatuous arguments that it is not subject to the authority of the President, please also confirm that the directive included the Office of the Vice President and that the Office of the Vice President intends to comply," Sen. Biden wrote.

Sen. Biden was apparently referring to the Vice President's position, recently endorsed by the Justice Department, that his Office is not an "executive branch entity" for purposes of classification oversight.

WHITE HOUSE OBJECTS TO FY2008 INTEL AUTHORIZATION BILL

Perhaps the clearest indication lately that intelligence oversight still matters is a new White House Statement of Administration Policy expressing strong opposition to the FY2008 Intelligence Authorization bill.

"If this bill were to pass the House and the Senate and be presented to the President for signature, the President's senior advisors would recommend that he veto the bill," the Statement notes.

On issue after issue, from interrogation to congressional reporting, the White House indicates disapproval of the new legislation, which has already been accepted by a House-Senate conference and awaits a final vote in each house.

Among other things, "The Administration also objects to section 328, which attempts to use Congress' power of the purse to circumvent the authority of the Executive Branch to control access to extraordinarily sensitive information."

This provision, which represents something of a new milestone in intelligence oversight (Secrecy News, 12/10/07), would impose a "fence" on certain spending until the Administration briefs the intelligence committees on the Israeli strike on a Syrian facility. It was introduced by Rep. Pete Hoekstra (R-MI) and adopted on a bipartisan basis.

A RESOLUTION ON INTERNET ACCESS TO CRS REPORTS

A bipartisan resolution to provide online public access to Congressional Research Service reports was introduced in the Senate yesterday.

"The Sergeant-at-Arms of the Senate, in consultation with the Director of the Congressional Research Service, shall make available through a centralized electronic system, for purposes of access and retrieval by the public ... all information described in paragraph (2) that is available through the Congressional Research Service website," the Resolution states.

Exemptions from disclosure are included for copyrighted and personal information, and for reports that are prepared confidentially for an individual member or committee.

The resolution, S. Res. 401, was jointly introduced by Senators Joe Lieberman, John McCain, Susan Collins, Patrick Leahy, John Cornyn and Tom Harkin.

The Legislative Branch must "increase its transparency and expand its interactive relationship with the public," said Sen. Lieberman yesterday.

"In this spirit, Senators McCain, Collins and I are introducing today legislation to require the Congressional Research Service to make its extremely valuable reports public. No method currently exists for the public to access them quickly and easily. As a result, many businesses collect the reports and sell them to paying customers. Our bill would allow members and Committees to easily post all CRS reports on their websites to anyone with internet access," Sen. Lieberman said.

This arguably overstates the case on several points -- "extremely valuable," "no method," and "many businesses." And similar legislative initiatives have proved fruitless in the past. But this one may fare better, particularly since it does not appear to require coordination with the House of Representatives.

A REVERSAL FOR CIA IN JFK FOIA LAWSUIT

A federal appeals court last week overturned a lower court ruling that the CIA had won in a Freedom of Information Act lawsuit involving JFK assassination records, and ordered CIA to continue processing the request.

The case involves records sought by journalist Jefferson Morley that he believes will provide new insight into the assassination.

"This decision, if the CIA respects it, will shed new light on one of the murkiest areas of the Kennedy assassination story: the CIA intelligence collection operations that picked up on Lee Harvey Oswald in the weeks before JFK went to Dallas," Mr. Morley said.

FOIA decisions against the CIA are relatively rare. The latest decision does not immediately imply any new release of records, but requires the CIA to perform a new search and to provide further justification for its opposition to disclosure.

See "CIA Loses Case at DC Circuit" in The FOIA Blog, December 7:

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

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