SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 50
May 25, 2011

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

SEN. WYDEN DECRIES "SECRET LAW" ON PATRIOT ACT

An amendment offered on May 24 by Sen. Ron Wyden would have challenged the Administration's reliance on what he called "secret law" and required the Attorney General to explain the legal basis for its intelligence collection activities under the USA PATRIOT Act. But that and other proposed amendments to the PATRIOT Act have been blocked in the Senate.

"The public will be surprised... when they learn about some of the interpretations of the PATRIOT Act," Sen. Wyden said, based on his access to classified correspondence between the Justice Department and the Senate Intelligence Committee.

"U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public's understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public."

"We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used," Sen. Wyden said. "But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means."

But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.

The House Judiciary Committee issued a report last week on the reauthorization of surveillance provisions in the USA PATRIOT Act, with a lengthy dissent from the minority members of the Committee. See "FISA Sunsets Reauthorization Act of 2011," House Report 112-79, part 1, May 18, 2011:

In 2008, then-Sen. Russ Feingold chaired a Senate Judiciary Committee hearing on "Secret Law and the Threat to Democratic and Accountable Government."

PAKISTAN-U.S. RELATIONS, AND MORE FROM CRS

A new overview of relations between Pakistan and the United States in light of recent events was prepared by the Congressional Research Service. See "Pakistan-U.S. Relations: A Summary," May 16, 2011:

Some other new CRS reports include the following.

"Interagency Collaborative Arrangements and Activities: Types, Rationales, Considerations," May 9, 2011:

"Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues," May 5, 2011:

"Internships, Fellowships, and Other Work Experience Opportunities in the Federal Government," May 12, 2011:

A CALL FOR SELF-RESTRAINT IN DISCLOSURE OF SENSITIVE INFO

Instead of imposing mandatory new legal restrictions on publication of sensitive information, the nation would be better off if scientists, journalists and others adopted an ethic of self-restraint in what they choose to publish, a provocative new paper suggests.

"An abundance of information that could be useful to terrorists is available in the open literature," wrote analyst Dallas Boyd. But that doesn't mean it should be censored by law. "A soft consensus seems to have formed that airing this information does not subtract from national security to such an extent as to justify the extraordinary powers that would be required to suppress it."

"An alternative to draconian restrictions on speech entails fostering a culture of voluntary restraint, in which citizens refrain from inappropriate revelations out of a sense of civic duty. Its enforcement would depend not on government coercion but on individuals and institutions supplying disapproval of irresponsible discussion," he suggested.

"Stigmatization of those who recklessly disseminate sensitive information... would be aided by the fact that many such people are unattractive figures whose writings betray their intellectual vanity. The public should be quick to furnish the opprobrium that presently escapes these individuals," he wrote, without quite naming names. "The need to influence the behavior of scientists is particularly acute."

The 23-page paper contains an extensive account of past disclosures that the author deems questionable or irresponsible, and a thoughtful assessment of the feasibility of his own proposal.

"Perhaps the greatest obstacle to sanitizing discussion of sensitive information is the unresolved question of its harmfulness," Mr. Boyd wrote. Indeed, it is often not possible to state definitively that certain information poses an unambiguous hazard. It is typically even more difficult to persuade a publisher of such material to modify his disclosure practices.

Overall, the Boyd paper tends to reinforce the "soft consensus" that new legal restrictions on dissemination of information are to be avoided. But in most cases, those who are likely to be receptive to the appeal of voluntary self-restraint on publication of sensitive data probably have already embraced it.

"Protecting Sensitive Information: The Virtue of Self-Restraint" by Dallas Boyd was published in Homeland Security Affairs, volume 7, May 2011. A copy is posted here:

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

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