SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 99
September 28, 2012

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

SENATE JUDICIARY COMMITTEE MOVES TO AMEND FISA AMENDMENTS ACT

The Obama Administration proposal to renew the Foreign Intelligence Surveillance Act (FISA) Amendments Act for another five years would be amended to a three year extension, if the Senate Judiciary Committee has its way.

Last June, the Senate Intelligence Committee approved -- without amendment -- the Administration's request for a five year renewal of the intelligence surveillance authorities of the FISA Amendments Act (FAA) that are due to expire at the end of this year. Shortly thereafter, the Senate Judiciary Committee asked that the measure be referred for its consideration as well.

Last week, the Judiciary Committee reported its version of the bill and, unlike the Intelligence Committee, it insisted on amending the Administration proposal, over the opposition of Republican members of the Committee.

The amended version of the bill would not curtail the scope of existing surveillance authorities.

However, the Committee amendment would extend those authorities until 2015, rather than 2017 as the Administration asked. It would further require the Inspector General of the Intelligence Community "to conduct a comprehensive review of the implementation of the FISA Amendments Act, with particular regard to the protection of the privacy rights of United States persons." The Inspector General would also be required to publicly release an unclassified summary of the review. A similar proposal offered by Senators Wyden and Udall was rejected by the Senate Intelligence Committee.

These modest amendments to the Administration proposal are necessary and appropriate, the Judiciary Committee said in its new report on the bill.

"The alternative of a five-year extension [...] without any additional oversight or accountability requirements, and without the benefit of the complete work of the inspectors general, is ill-advised and inconsistent with this Committee's constitutional responsibility to provide vigorous and effective oversight."

All Republican members of the Committee voted against the amended bill and urged that the Obama Administration's position be adopted by Congress.

"Our oversight of the statute has found no evidence that it has been intentionally misused or that more oversight is needed," the Republicans wrote in a minority statement appended to the report. "The combination of the statutory limitations on collection, targeting and minimization procedures and guidelines, and compliance oversight by the Administration and Congress, ensure that the rights of U.S. persons are sufficiently protected when their communications are incidentally collected in the course of targeting non-U.S. persons located abroad."

Yet such oversight has failed in the past, the Committee report noted. In its narrative account of the background to the bill, the Committee majority recalled that the post-9/11 surveillance program began outside the framework of the law and without proper congressional notification or approval.

"This warrantless surveillance was conducted outside the scope of FISA, without any approval by the FISA court, and without the full knowledge or consent of Congress," the Committee report noted. "The public first became aware of the existence of this warrantless surveillance program in December 2005 through a report in the New York Times."

Although the Judiciary Committee bill, as amended, is inconsistent with the version reported out of the Senate Intelligence Committee, the report noted that the amended bill was supported by Sen. Dianne Feinstein, the chair of the Intelligence Committee, which should presumably increase the likelihood of its approval by the full Senate. If approved, the amended bill would then have to be reconciled with the "clean," unamended extension that was approved by the House.

DNI ISSUES DIRECTIVE ON CIVIL LIBERTIES AND PRIVACY

The Director of National Intelligence "is committed to protecting civil liberties and privacy, which are foundational principles of our Nation's democratic society, preserved in the Constitution of the United States, and guaranteed in Federal law."

So states a new Intelligence Community Directive on Civil Liberties and Privacy, signed by DNI James R. Clapper on August 31, 2012.

Beyond affirming the value of civil liberties, the new directive -- ICD 107 -- also directs the establishment of oversight mechanisms and of procedures for redress of alleged violations.

The DNI directive does not include definitions of privacy or civil liberties, and its practical meaning is somewhat elusive.

"Intelligence activities shall be conducted in a manner that protects civil liberties and privacy," the directive states. But that seemingly categorical statement is rendered ambiguous by the very next sentence.

"The IC shall protect civil liberties and privacy in a manner that enables proper intelligence integration and information sharing and safeguarding."

DNI DIRECTIVE PROMOTES USE OF "TEARLINE" DOCUMENTS

In order to promote improved information sharing, the Director of National Intellingence told agencies to make use of "tearlines." This refers to the practice of segregating and withholding the most sensitive portions of a document, allowing the remainder to be "torn off," literally or figuratively, and widely disseminated.

"Tearlines are portions of an intelligence report or product that provide the substance of a more highly classified or controlled report without identifying sensitive sources, methods, or other operational information," a new DNI directive states. "Tearlines release classified intelligence information with less restrictive dissemination controls, and, when possible, at a lower classification."

"Tearlines shall be written for the broadest possible readership in accordance with established information sharing policies, and requirements in law and policy to protect intelligence sources and methods."

See "Tearline Production and Dissemination," Intelligence Community Directive 209, September 6, 2012:

In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress mandated that "the President shall... issue guidelines... to ensure that information is provided in its most shareable form, such as by using tearlines to separate out data from the sources and methods by which the data are obtained" (section 1016(d)(1)).

Although the tearline approach also lends itself to public dissemination of national security documents, with particularly sensitive material removed, the new intelligence directive does not explicitly extend to sharing information with the public.

REAGAN DIRECTIVE ON "PRE-EMPTIVE NEUTRALIZATION" OF TERRORISTS

In 1984, President Reagan ordered the Director of Central Intelligence to develop "capabilities for the pre-emptive neutralization of anti-American terrorist groups which plan, support, or conduct hostile terrorist acts against U.S. citizens, interests, and property overseas."

The President further ordered the DCI to "develop a clandestine service capability, using all lawful means, for effective response overseas against terrorist acts commmitted against U.S. citizens, facilities, or interests."

Those instructions were contained in National Security Decision Directive 138, "Combatting Terrorism," which was issued on April 3, 1984.

A few weeks earlier, Hezbollah forces in Lebanon had kidnapped William Buckley, the CIA station chief in Beirut.

NSDD 138 remained classified for many years and was not fully declassified until two years into the Obama Administration.

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

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