SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 21
March 2, 2011

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

BUSH OLC OPINIONS ON WIRETAPPING STILL UNDER "REVIEW"

In June 2009, Senator Russ Feingold (D-WI) asked the Obama Administration to rescind certain classified legal opinions issued by the Justice Department Office of Legal Counsel (OLC) that asserted legal justifications for the Bush Administration's warrantless wiretapping program.

But more than a year and a half later, those OLC opinions remain under review and no action has been taken to invalidate them, the Justice Department indicated in a newly published hearing volume.

"I just want to reiterate how important it is for the legal justifications for this program to be withdrawn," said Sen. Feingold at a June 17, 2009 hearing of the Senate Judiciary Committee, referring to the warrantless wiretapping program. "I am concerned these memos that make unsupportable claims of executive power will come back to haunt us if they remain in effect. And if you believe, as I think the President [Obama] has indicated in the past, that the program was illegal, they cannot stand."

Attorney General Eric Holder told Sen. Feingold at that June 2009 hearing that he had asked the Office of Legal Counsel to review the opinions, and to release them publicly to the extent possible. "It is my hope that that process, which is ongoing, will lead to the release of several opinions in a relatively short period of time."

In an October 2009 response to a follow-up question for the record, the Department of Justice told Sen. Feingold that "the review processes described in your question are still ongoing." (at page 11)

In a March 2010 response to the same question, DOJ said "The Department is still conducting its review.... No one in the Department has made any affirmative decision about the treatment of the OLC opinions." (at page 23)

Well, "What is the status of that review? When will it be complete?" asked Sen. Feingold yet again, following an April 2010 hearing.

In a December 2010 response that has just been published, DOJ repeated that "The Department is still conducting its review, and will work with you and your staff to provide a better sense regarding the timing of the completion of the review." (at pp. 29-30)

But a review that continues indefinitely is practically indistinguishable from no review at all. And since Senator Feingold has now left the Senate, the Department will not be working with him and his staff to resolve this issue. All that remains is the Senator's warning about the hazards of embracing "unsupportable claims of executive power."

ISOO DIRECTOR BOSANKO PROMOTED TO NEW ROLE

William J. Bosanko, the director of the Information Security Oversight Office (ISOO), has been appointed to lead a new organization at the National Archives called Agency Services. In that capacity, he will "lead the National Archives efforts to service the records management needs of Federal agencies, and represent the public's interest in the accountability and transparency of these records," said Archivist of the United States David S. Ferriero in a news release yesterday.

As the new Executive for Agency Services, Mr. Bosanko will be responsible for several existing Archives components, including Records Management Policy & Oversight, the Federal Records Center Program, the Office of Government Information Services, the National Declassification Center, and ISOO. It is a large and important portfolio, and the appointment reflects the high regard in which Mr. Bosanko is held inside and outside of government.

But it also means that he will no longer be the Director of ISOO. Although he will now be the ISOO Director's superior, he will no longer possess the Director's classification oversight authorities and responsibilities, which derive from an executive order.

A new ISOO Director will have to be chosen and put in place. At a time of profound transformation of the classification system (one may still hope), the transfer of leadership at ISOO could create some worrisome instability.

"I have committed 12 years to ISOO and believe deeply in its mission," Mr. Bosanko said. "Please know that I will do my best to look out for it in my new role."

PUBLIC ACCESS TO CRS REPORTS URGED

Dozens of public interest groups wrote to the Librarian of Congress last week to urge him to appoint a new Director of the Congressional Research Service who would work with Congress to promote public access to CRS reports.

"The public needs access to these non-confidential CRS reports in order to discharge their civic duties," the letter stated. "American taxpayers spend over $100 million a year to fund the CRS, which generates detailed reports relevant to current political events for lawmakers. But while the reports are non-classified, and play a critical role in our legislative process, they have never been made available in a consistent and official way to members of the public."

There are several large collections of CRS reports that have been placed online by public interest groups, including the Federation of American Scientists. But Congress has prohibited CRS from providing its products directly to the public. And the current CRS director, Daniel Mulhollan, who is retiring in the next few weeks, has actively supported that non-disclosure policy.

What has happened under Mr. Mulhollan's tenure is that CRS reports have been commodified. Instead of being made freely available to the public, they are marketed by vendors. A typical ten-page report may be sold for as much as $29.95 ($19.95 for students!). Mr. Mulhollan has produced a litany of arguments against public distribution of CRS reports, but all of them are mooted by the simple fact that the reports are distributed anyway-- for a fee.

The appointment of a new CRS Director will be an opportunity to chart a new, more sensible course for the congressional support agency, to include free public distribution of non-confidential reports.

Some noteworthy new CRS reports include the following.

"U.S. Response to the Global Threat of Tuberculosis: Basic Facts," February 22, 2011:

"U.S. Response to the Global Threat of Malaria: Basic Facts," February 22, 2011:

"U.S. Response to the Global Threat of HIV/AIDS: Basic Facts," February 22, 2011:

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

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