SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 70
September 2, 2010

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

FISA COURT PROPOSES NEW COURT RULES

The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008. The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA).

The proposed FISA Court rules provide new procedures by which telecommunications companies can petition the Court to modify or dismiss a court order or a directive from the Attorney General or the DNI requiring them to assist in electronic surveillance, to provide "any tangible thing," or to adhere to a nondisclosure requirement concerning intelligence surveillance. Meanwhile, other procedures would permit the government to petition the Court to compel cooperation by a non-compliant telecommunications provider. A new section in the proposed FISA Court rules accordingly addresses the conduct of "adversarial proceedings," a term that does not appear in the current rules (last modified in 2006).

The proposed new rules make other minor editorial changes in current procedures. For example, the existing rules provide for publication of FISA Court opinions, but state that "Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary" to ensure that properly classified information is not disclosed. In a slight but possibly noteworthy revision, the proposed new rules state that "Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary...."

The FISA Court has provided an opportunity for public comment on the new rules. Comments are due by October 4, 2010. The draft rules, the existing rules, and a link for submitting comments can all be found here:

The FISA Amendments Act of 2008, which provided the impetus for the new rules, was strongly opposed by civil liberties groups because it granted immunity to telecoms that may have violated the FISA by implementing President Bush's Terrorist Surveillance Program, which circumvented that binding statute altogether. The 2008 Amendments were also opposed by several Senators who went on to become leading figures in the Obama Administration and who expressed concern that the Act did not give the FISA Court enough independent authority.

"Although the bill gives the FISA Court a greater role than earlier bills did, it still fails to provide for a meaningful judicial check on the President's power," said Senator Joe Biden during the July 9, 2008 floor debate on the Act.

Likewise, "while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President's power is debatable," said Sen. Hillary R. Clinton, explaining her decision to vote against the Amendments.

But the FISA Amendments Act was supported by then-Senator Barack Obama, along with a majority of other Senators and Congressmen, and it was enacted into law.

GAO ACCESS TO INTELLIGENCE IN DISPUTE

The continuing controversy over whether the Government Accountability Office will be permitted to participate in intelligence oversight, as some in Congress wish, or whether cleared GAO auditors and investigators will be excluded from intelligence oversight tasks, as the Obama Administration prefers, was discussed in the Washington Post's Top Secret America blog yesterday.

I participated in a Q&A on the issue with the Post's Dana Hedgpeth here:

U.S. NUCLEAR STOCKPILE SECRECY: A VIEW FROM 1949

The question of whether or not to disclose the number of nuclear weapons in the U.S. arsenal "goes to the very heart of our democratic system of government," said Senator Brien McMahon (D-CT) in a newly rediscovered 1949 speech on secrecy in nuclear weapons policy.

"Do we possess five bombs, or fifty bombs, or five hundred bombs? Are we strong or weak in the field of atomic weapons? Only the Atomic Energy Commissioners, high-ranking military men, and a few others know the correct answer to these vital questions," Sen. McMahon said.

Sen. McMahon (1903-1952) was the principal author of the Atomic Energy Act of 1946, which established the Atomic Energy Commission and placed control of nuclear weapons in civilian hands.

"Though I have been a member of the Joint Congressional Committee on Atomic Energy since its inception, and though I have just been elected its chairman, I do not myself know how many bombs we possess or how rapidly we are making new ones," he said.

"It is interesting to note that concealment of atomic production rates is secrecy of a scope which has never been attempted before during peacetime in the United States," Sen. McMahon said. He indicated that he had not reached a definite conclusion as to whether the size of the stockpile size should be made public.

The text of Senator McMahon's January 31, 1949 address to the Economic Club of Detroit was entered into his rather voluminous FBI file, which was obtained by researcher Michael Ravnitzky. A copy of the speech is posted here:

Illustrating the often glacial pace of secrecy reform, it was not until May 3 of this year that the current size of the nuclear arsenal was officially revealed for the first time.

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

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