SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 88
November 3, 2010

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

A STEP TOWARDS INTELLIGENCE BUDGET REFORM

Now that regular publication of the intelligence budget total has been accepted as the new norm, it is becoming possible to dismantle the related structures of budget secrecy that no longer serve any purpose. In particular, the prospect of establishing a stand-alone intelligence budget that is independent of the budget of the Department of Defense came a step closer to reality with the announcement by Director of National Intelligence James R. Clapper Jr. that he had reached agreement on the matter with the Secretary of Defense.

"I have secured at least conceptual agreement with the secretary of defense to take the National Intelligence Program out of the defense budget," DNI Clapper said at the GeoInt conference in New Orleans yesterday.

Currently, the bulk of intelligence spending is buried within the Pentagon budget in a deliberately obscure and misleading way. This practice is not only unnecessarily secretive, it is also deceptive. It distorts the DoD budget by artificially inflating individual budget line-items, and it falsely includes spending for the Central Intelligence Agency -- a non-DoD agency -- as if it were part of the Pentagon.

Restructuring the budget so that spending for the National Intelligence Program is assigned to the Office of the DNI would not guarantee wise or effective intelligence policy. But it would remove a source of pointless obfuscation, and thereby strengthen oversight and accountability.

From the DNI's perspective, it would enhance control over the budget. "I think that is one specific way to accrue more authority to ODNI in the oversight and execution of that funding," DNI Clapper said.

And from the Pentagon's perspective, nothing would be lost since DoD does not control this money anyway. (The Military Intelligence Program budget would remain under DoD authority.) And so the pretense of a larger DoD budget than there actually is could finally be abandoned.

"To me that is kind of a win-win," DNI Clapper said. "It is $50 billion off the top line of DoD. And it certainly gives ODNI a lot more authority and insight and transparency over that money."

If one also considers the public interest in achieving honest, straightforward budgeting, then this step would be win-win-win. However, the change in budget structure may imply a corresponding change in the jurisdiction of congressional authorization and appropriations committees, and so it may encounter opposition in Congress from proponents of the existing arrangements.

For related news coverage and background, see "Intel foiled al Qaeda plot, DNI chief says" by Eli Lake, Washington Times, November 3; "Control of intelligence budget will shift" by Ellen Nakashima, Washington Post, November 3; and "Intel Budget Disclosure: What Comes Next?", Secrecy News, November 1.

SURVEILLANCE COURT ISSUES NEW RULES OF PROCEDURE

The Foreign Intelligence Surveillance Court, which reviews government applications for domestic intelligence surveillance, issued new rules on Monday to govern its proceedings. The new rules differ only slightly from the draft rules that were issued for public comment in late August ("FISA Court Proposes New Court Rules," Secrecy News, September 2, 2010). In general, the rules update past Court procedures to reflect passage of the FISA Amendments Act of 2008, which expanded government surveillance authority.

In one modest editorial change suggested by FAS, the Court altered a line requiring that "classified information" be protected to specify that only "properly classified information" must be protected (Rule 62a).

Another new provision in the final rules indicated that not only the government but also the Presiding Judge of the FISA Court "may provide copies of Court orders, opinions, decisions, or other Court records to Congress" (Rule 62c2).

In lengthy comments submitted to the Court last month, the ACLU proposed several other substantive changes: the rules should require public release of Court opinions and order that address significant or novel legal questions, including those that affect personal privacy; the Court should release legal briefs that address such questions; and the Court should clarify that it is the final arbiter of what information is to be released and what is to be redacted.

"The public has a right to see judicial rulings that define the scope of the government's most intrusive surveillance powers and affect the rights of all Americans," said Melissa Goodman of the ACLU National Security Project. "Secret law is inconsistent with the basic principles of democracy and makes informed public debate about the government's surveillance powers nearly impossible."

These specific changes were not adopted in the final rule, but new releases of Court records were not precluded either. Rule 62a explains that a Court order or opinion may be published at the direction of the Presiding Judge, following a declassification review by the executive branch if necessary:

"Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor)."

At first glance, the instruction that the Court "may, as appropriate" seek declassification review of opinions and orders prior to release seems to be permissive, not mandatory. By contrast, the previous version of the Court rules stated that opinions (though not orders) "must be reviewed" by the executive branch prior to publication.

http://www.fas.org/irp/agency/doj/fisa/fiscrules.pdf Based on this change in language some observers inferred, happily or unhappily, that declassification review of Court opinions by the executive branch was now optional, and that the Court had reserved the right to release classified information on its own authority without such review.

But that appears to be a erroneous reading. The Court's Rule 3 states unequivocally that "In all matters, the Court and its staff shall comply with... Executive Order 13526, 'Classified National Security Information'." That Executive Order does not permit unilateral disclosures of classified information or records without the prior review of the agency that classified them.

THE DEFINITION OF PIRACY, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service include the following.

"Piracy: A Legal Definition," October 19, 2010:

"Proliferation Control Regimes: Background and Status," October 18, 2010:

"Changes in the Arctic: Background and Issues for Congress," October 15, 2010:

"Armed Career Criminal Act (18 U.S.C. 924(e)): An Overview," October 13, 2010:

"Homeland Security Department: FY2011 Appropriations," October 13, 2010:

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

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