SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 74
August 2, 2011

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

SENATE INTEL COMMITTEE BLOCKS REPORT ON "SECRET LAW"

The Senate Intelligence Committee rejected an amendment that would have required the Attorney General and the Director of National Intelligence to confront the problem of "secret law," by which government agencies rely on legal authorities that are unknown or misunderstood by the public.

The amendment, proposed by Sen. Ron Wyden and Sen. Mark Udall, was rejected by the Committee on a voice vote.

"We remain very concerned that the U.S. government's official interpretation of the Patriot Act is inconsistent with the public's understanding of the law," Senators Wyden and Udall wrote. "We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret."

The Senators included dissenting remarks, along with the text of their rejected amendment, in the new Senate report on the FY2012 Intelligence Authorization Act.

Sen. Wyden and Sen. Udall also offered another amendment that would have required the Justice Department Inspector General to estimate the number of Americans who have had the contents of their communications reviewed in violation of the FISA Amendments Act of 2008. That amendment too was rejected, by a vote of 7-8. All Committee Republicans, plus Democrat Bill Nelson (D-FL), opposed the amendment.

"It is a matter of public record that there have been incidents in which intelligence agencies have failed to comply with the FISA Amendments Act, and that certain types of compliance violations have continued to recur," Senators Wyden and Udall wrote. "We believe it is particularly important to gain an understanding of how many Americans may have had their communications reviewed as a result of these violations."

"We understand that some of our colleagues are concerned that our amendment did not explicitly state that the final report of the Inspector General's investigation should be classified. We respectfully disagree that this is necessary," they said. "In any event, we are confident that the executive branch will seek to classify any information that it believes needs to be secret, and that it is not necessary for Congress to direct that particular reports be classified."

The Senate Intelligence Committee report was silent on the status of the Committee's investigation of the CIA's post-9/11 detention and interrogation program, which has been underway for over two years.

The Obama Administration is invoking the state secrets privilege to seek partial dismissal of a lawsuit alleging unlawful surveillance of Southern California mosques, reported Josh Gerstein in Politico on August 1.

FORMER ISOO DIRECTOR FILES COMPLAINT ON OVERCLASSIFICATION

J. William Leonard, the former director of the Information Security Oversight Office (ISOO) has filed a complaint with the current ISOO director alleging that the National Security Agency wrongly classified a document, which was then used as a basis for the Espionage Act indictment of Thomas Drake, the New York Times reported. See "Complaint Seeks Punishment for Classification of Documents" by Scott Shane, August 2:

"If you're talking about throwing someone in jail for years, there absolutely has to be responsibility for decisions about what gets classified," Mr. Leonard told the Times.

Mr. Leonard had been a volunteer expert witness for the defense in the recently concluded prosecution of Thomas Drake, the former NSA official. The document that is the subject of his complaint is no longer classified, but it is still subject to a protective order. Mr. Leonard requested and received permission from the court to pursue his complaint last Friday.

"A surprising war on leaks under Obama," an op-ed by Thomas Drake and Jesselyn Radack, was published in the Philadelphia Inquirer on August 1.

FASTER FOIA BILL PASSED IN SENATE AGAIN

The Faster FOIA Act, a modest bit of legislation to establish a commission "to examine the root causes of FOIA delays," was introduced and passed in the Senate yesterday.

It was previously passed in May, but the resulting bill was amended by the House in order to serve as a vehicle for its debt ceiling maneuver, stripping out the FOIA-related content. To reactivate the original Faster FOIA Act bill, it needed to be reintroduced. The new bill, S. 1466, passed on a voice vote on August 1, and will move once again to the house.

The Department of Defense has updated its Freedom of Information Act directive. In mostly new language added last week, the directive said "It is DoD policy to promote transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA; responding promptly to requests in a spirit of cooperation; and by taking affirmative steps to make the maximum amount of information available to the public, consistent with the DoD responsibility to protect national security and other sensitive DoD information."

Also new is a report from the Congressional Research Service on "Freedom of Information Act (FOIA): Background and Policy Options for the 112th Congress," July 26, 2011:

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

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