SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 84
October 21, 2010

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

GAO ROLE IN INTEL OVERSIGHT TO BE DETERMINED

The recently enacted 2010 Intelligence Authorization Act requires the Director of National Intelligence to prepare a directive concerning access by the congressional Government Accountability Office (GAO) to intelligence information. The forthcoming directive, the content of which was not clearly specified by Congress, could enable GAO investigators to play a more significant role in intelligence oversight, or it could effectively shut the door on them.

According to a newly disclosed May 27, 2010 letter from then-National Security Advisor James L. Jones to Rep. Anna Eshoo, the GAO should be excluded from nearly every aspect of intelligence oversight that involves... intelligence.

While GAO is nominally free to address "a broad range of issues and topics" that concern the intelligence community, Gen. Jones wrote, "There are four areas where we look to the intelligence committees to exercise exclusive jurisdiction: (1) the evaluation, review, and audit of intelligence activities, capabilities, programs, and operations; (2) activities involving intelligence sources; (3) activities involving intelligence methods; and (4) the analysis of intelligence funding."

So other than intelligence activities, capabilities, programs, operations, sources, methods and funding -- everything else is fair game for GAO oversight.

The exclusions advanced by Gen. Jones "essentially cut GAO out of the game," a congressional staffer told Secrecy News. "And believe me, DOJ, FBI and DHS have been using this position as a rationale for denying GAO information. This does not give me much hope as we start ramping up to work with ODNI on the access protocols they are required to write."

However, DNI James R. Clapper expressed a considerably narrower view of what should be off-limits to GAO in public remarks earlier this month: "I am more concerned or sensitive about GAO getting into what I would consider sort of the core essence of intelligence – that is, evaluating sources and methods, critiquing national intelligence estimates, doing this sort of thing, which I think strikes at the very essence of what the intelligence committees were established to do."

Even so, he suggested that individual GAO staff members could also pursue such highly sensitive matters if this was formally done under direction of the intelligence committees:

"Now, [if] they want to have the GAO assist, detail GAO staff to – if they have the subject matter experts – to the committees. I think that's fine as long as it's done under the auspices of the committees when you're getting at the core essence of what intelligence is and does," Gen. Clapper said.

This view seems to allow much greater space for compromise, especially since there is much that GAO could do in terms of intelligence program audits and reviews that would not involve "evaluating sources" or otherwise impinge on "the core essence of intelligence." The new DNI directive is to be coordinated with the GAO and submitted to Congress by May 1, 2011.

INVENTION SECRECY STILL GOING STRONG

There were 5,135 inventions that were under secrecy orders at the end of Fiscal Year 2010, the U.S. Patent and Trademark Office reported last week. It's a 1% rise over the year before, and the highest total in more than a decade.

Under the Invention Secrecy Act of 1951, patent applications on new inventions can be subject to secrecy orders restricting their publication if government agencies believe that disclosure would be "detrimental to the national security."

The current list of technology areas that is used to screen patent applications for possible restriction under the Invention Secrecy Act is not publicly available and has been denied under the Freedom of Information Act. (An appeal is pending.) But a previous list dated 1971 and obtained by researcher Michael Ravnitzky is available here:

Most of the listed technology areas are closely related to military applications. But some of them range more widely.

Thus, the 1971 list indicates that patents for solar photovoltaic generators were subject to review and possible restriction if the photovoltaics were more than 20% efficient. Energy conversion systems were likewise subject to review and possible restriction if they offered conversion efficiencies "in excess of 70-80%."

One may fairly ask if disclosure of such technologies could really have been "detrimental to the national security," or whether the opposite would be closer to the truth. One may further ask what comparable advances in technology may be subject to restriction and non-disclosure today. But no answers are forthcoming, and the invention secrecy system persists with no discernible external review.

NEW BOOKS RECEIVED

Secrecy News was pleased to receive the following books, though we have not yet had a chance to read them closely.

"The Reagan Files: The Untold Story of Reagan's Top-Secret Efforts to Win the Cold War" edited by Jason Saltoun-Ebin is a rich collection of declassified letters, transcripts and National Security Council meeting minutes gleaned from the Reagan Library concerning U.S.-Soviet relations and the end of the Cold War. See:

"Torture, Terror, and Trade-Offs: Philosophy for the White House" by Jeremy Waldron (Oxford University Press) investigates questions of law and security, public safety and individual rights.

"Continental Defense in the Eisenhower Era: Nuclear Antiaircraft Arms and the Cold War" by Christopher J. Bright builds on declassified files to tell the story of the thousands of nuclear antiaircraft weapons which were deployed around U.S. cities during the Cold War.

EFF ANNOUNCES PIONEER AWARDS

I'm very grateful to the Electronic Frontier Foundation for naming me as one of the four recipients of its 2010 Pioneer Awards, which are intended "to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology."

EFF is not only a prominent voice of online freedom, but is itself a pioneer in confronting unlawful domestic surveillance, the use of the state secrets privilege by the Bush and Obama Administrations to foreclose litigation, and other difficult issues. So it's an honor to be recognized by this outstanding organization.

The EFF Pioneer Awards ceremony will be held November 8 in San Francisco and is open to the public. For ticket information and other background see here:

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

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