SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 6
January 21, 2009

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

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OBAMA: WE WILL "DO OUR BUSINESS IN THE LIGHT OF DAY"

President Barack Obama found room in his inaugural address to affirm a commitment to open, accountable government.

"And those of us who manage the public's knowledge will be held to account, to spend wisely, reform bad habits and do our business in the light of day, because only then can we restore the vital trust between a people and their government," the President said.

There are several notable aspects to this formulation. First, it clearly states that government information belongs to the public and that it is only temporarily managed by its current custodians in office. It reasserts the original constitutional linkage between public disclosure and wise government spending. It acknowledges the need for reform and correction of bad government information habits. And it implicitly recognizes that the vital relationship of trust between the people and the government has been broken and needs to be restored.

Some of the Obama Administration's initial steps towards greater openness seem to reflect more enthusiasm than careful consideration.

For example, the new White House web site now states that "We will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it."

This does not make a lot of sense, since the White House cannot amend legislation that has already been passed by Congress or take any other action in response to public "review and comment" except to veto the measure. Public comments on pending legislation need to be directed to members of Congress, whose specific function is to represent their constituents' interests and concerns.

Nevertheless, the proposal is another sign of a new willingness to engage the public through increased disclosure and communication. And it's another reason to stop and wonder at this new Administration.

PRESIDENTIAL TRANSITION BINDER SHINES A LIGHT ON FEMA

The structure and functions of the normally somewhat opaque Federal Emergency Management Agency (FEMA) are illuminated in a 238-page briefing book that was prepared for the presidential transition.

"The FEMA 2009 Presidential Transition Binder... is intended to serve as a reference for FEMA leadership and employees to help orient them to its organizational structure, programs, resources, stakeholders, and operations," the document states.

The Binder, which has not otherwise been made readily available to the public, was obtained by Jonah Czerwinski, who writes the Homeland Security Watch blog.

OLC SAYS LBJ MEMO CRITICAL OF POLYGRAPH IS NON-BINDING

The outgoing head of the Bush Administration Office of Legal Counsel took the time to issue an opinion last week stating that a forty-year-old memorandum issued by President Lyndon B. Johnson limiting use of polygraph tests is not binding on executive branch agencies today.

The Johnson memorandum had stated that in order "to prevent unwarranted intrusions into the privacy of individuals[,]... use of the polygraph is prohibited" in the Executive Branch, with three "limited exceptions."

But in a 12-page OLC opinion dated January 14, 2009, Steven G. Bradbury concluded that the Johnson memo was never formally issued, that it was contradicted by subsequent actions and that in any event it is not binding on executive branch agencies today.

The OLC memo was previously noted by polygraph critic George Maschke of Antipolygraph.org, who also posted a copy of the LBJ memo on polygraph testing.

FEINGOLD: NEW FISA COURT RULING BASED ON INCOMPLETE RECORD

When it upheld the constitutionality of warrantless intelligence surveillance under certain very particular circumstances in a ruling that was disclosed last week, the Foreign Intelligence Surveillance Court of Review was acting on an incomplete factual record that may have skewed its decision, according to Senator Russ Feingold (D-WI).

"It is my view that the Court's analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government's implementation of the law, about which I have repeatedly raised concerns in classified settings," Sen. Feingold said.

The new decision "placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access." The court therefore ruled "without the benefit of an effective adversarial process," he said in a January 16 statement.

In any case, Sen. Feingold stressed, the new decision "in no way validates or bolsters the president's illegal warrantless wiretapping program. The decision, which only addressed surveillance authorized by the Protect American Act (PAA) enacted in August 2007, did not support the President's claim of constitutional authority to violate the law. Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act's application in this particular case."

While narrowly limited in scope to the specific, never-to-be-repeated circumstances of this case, the new ruling explicitly states for the first time that there is a foreign intelligence exception to the Fourth Amendment: "[W]e hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States." [at page 17]

IRAN'S TESTING OF RUSSIAN SHKVAL TORPEDO DOCUMENTED

The Russian Shkval torpedo was tested for Iranian naval officials in 2004 and the resulting data were described in several newly disclosed Persian-language documents.

Iran's own Hoot torpedo is evidently derived from the Shkval. Both are high-speed, supercavitating anti-ship missiles.

Some of the newly disclosed Iranian documents, which include Shkval technical specifications and test performance data as well as Hoot production records, are marked "khayli mahramaneh" or "very confidential," the third of four classification levels used in Iran. The documents have not been approved for public release, but copies were obtained by Secrecy News.

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

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