Secrecy News – 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.

        http://www.fas.org/irp/congress/2012_rpt/faa-sjc.html

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.

        http://www.fas.org/irp/dni/icd/icd-107.pdf

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:

        http://www.fas.org/irp/dni/icd/icd-209.pdf

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 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.

        http://www.fas.org/irp/offdocs/nsdd/nsdd-138.pdf

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.