SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 25
March 11, 2008

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

THE FBI AS A FOREIGN INTELLIGENCE ORGANIZATION

Since 2006, the Federal Bureau of Investigation has assumed growing responsibilities as a collector of foreign intelligence, FBI budget documents indicate.

"In May 2006, the Director of the Office of National Intelligence tasked the FBI to use its collection authorities, consistent with applicable laws and protection of civil liberties, to collect FI [foreign intelligence] information against the National Intelligence Priorities Framework and pursuant to the National HUMINT Collection Directives."

Prior to that time, "there were no concerted efforts to collect FI exclusivly, nor did the FBI have an investigative program that solely focused intelligence collection activities on FI."

Today, the FBI is "the primary or supporting collector on ninety-eight (98) national intelligence topics that implement the [National Intelligence Priorities Framework]," according to the FBI's remarkably detailed congressional budget justification for fiscal year 2009 (page 6-48).

Virtually all foreign intelligence gathered by the FBI comes from confidential human sources. The Bureau requested $3.2 million to pay for source recruitment, or "approximately $16,000 per Agent for 200 Agents" (page 6-50).

The FBI Counterterrorism Division validated -- i.e. checked the reliability -- of 60% of its confidential human sources in FY 2007. This was an increase from 0% the year before, but short of the target of 100% validation (page 4-31).

Among other notable details, the FBI budget request states that in FY2007 there were over 21,000 "positive encounters" with known or suspected terrorists (page 4-29). "A positive encounter is one in which an encountered individual is positively matched with an identity in the Terrorist Screening Data Base."

The budget document also reports on threats to government and private information systems, stating that "more than 20 terabytes of sensitive information has been stolen to date, disrupting military operations and significantly impacting the confidence in the integrity of our national information infrastructure" (page 6-20).

A recent national security computer intrusion investigation determined that "computers were compromised at a sensitive policy making government entity" (page 6-23).

SECRECY REIGNS AT THE DOJ OFFICE OF LEGAL COUNSEL

The Justice Department's Office of Legal Counsel (OLC), which is responsible for interpreting the law for executive branch agencies, has played an influential role in the development of Bush Administration policy, and an unusually secretive one.

In a December 7 floor statement, Senator Sheldon Whitehouse (D-RI) described the contents of three OLC opinions that he had been able to review. One of them discussed the nature of executive orders as a category. Sen. Whitehouse characterized the conclusions of that OLC opinion as follows:

"An Executive order cannot limit a President. There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order."

We requested a copy of that seemingly innocuous, if questionable, opinion under the Freedom of Information Act. But the request was denied.

"We are withholding the document in full because it is classified and thus exempt under Exemption 1 of the FOIA," the OLC responded.

"The OLC should publicly release more of its opinions, as was routinely done during Janet Reno's tenure as attorney general during the 1990s," the Washington Post editorialized today. "Too many Bush OLC memos remain secret, with only a handful of administration officials being privy to their conclusions."

"During the Bush administration, the OLC has become known as a partisan enabler of legally and ethically questionable presidential policies, including those involving the use of torture."

See "The President's Lawyers," March 11:

SUNSHINE WEEK

Sunshine Week, a national campaign to promote openness and access to information, is March 16-22, 2008. Numerous events at the national and local level, as well as online, have been scheduled to encourage a public dialogue on transparency.

More information and abundant resources can be found here:

National Freedom of Information Act day will be observed on March 14 with a day-long conference sponsored by the First Amendment Center.

The recently-formed Collaboration on Government Secrecy at the American University's Washington College of Law will hold a conference on Monday March 17.

OpenTheGovernment.org will hold a webcast conference on Government Secrecy at the National Press Club on March 19.

Other national and local Sunshine Week events are noted here:

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

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