SECRERCY NEWS – INTELLIGENCE OVERSIGHT STEPS BACK FROM PUBLIC ACCOUNTABILITY

The move by Congress to renew the FISA Amendments Act for five more years
without amendments came as a bitter disappointment to civil libertarians
who believe that the Act emphasizes government surveillance authority at
the expense of constitutional protections.  Amendments that were offered to
provide more public information about the impacts of government
surveillance on the privacy of American communications were rejected by the
Senate on December 27 and 28.

    http://www.fas.org/irp/congress/2012_cr/faa-amend.html

    http://www.fas.org/irp/congress/2012_cr/faa-reauth.html

Beyond the specifics of the surveillance law, the congressional action
appears to reflect a reorientation of intelligence oversight away from
public accountability.  The congressional intelligence committees once
presented themselves as champions of disclosure. They no longer do so.

The first annual report of the Senate Select Committee on Intelligence,
chaired by the late Sen. Daniel K. Inouye, stated in 1977 that "While most
of the work of the Committee is, of necessity, conducted in secrecy, we
believe that even secret activities must be as accountable to the public as
possible."

    http://www.intelligence.senate.gov/pubactivities.html

Of course, the question of how much accountability is "possible" has
always been debatable.  But the basic principle of maximum possible
disclosure was endorsed by subsequent Committee leaders including Sen.
Barry Goldwater and Sen. Daniel P. Moynihan, who also wrote in 1981 that
"intelligence activities should be as accountable as possible to the
public."

In 1999, Senators Richard Shelby and Bob Kerrey affirmed on behalf of the
Intelligence Committee that "as much information as possible about
intelligence activities should be made available to the public."

But in recent years the Committee's periodic statement of principles has
changed in a subtle but significant way.  In its most recent report in
2011, the Committee said it seeks "to provide as much information as
possible about its intelligence oversight activities to the American public
consistent with national security concerns." Instead of disclosure and
public accountability for intelligence activities, the Committee would
promise only to reveal as much as possible about its oversight activities.

What makes this rhetorical shift noteworthy is that it seems to correspond
in broad strokes to a shift in the character and activity of the Committee
away from public accountability for intelligence.  Past Committees did not
always press for public accountability (and were not often successful when
they did), and the current Committee has not been completely indifferent to
it, but there does seem to be a perceptible trend.

The Senate Intelligence Committee used to be at the forefront of debates
over public disclosure of intelligence.  Demands for declassification --
often for intelligence budget information -- were a normal feature of
annual intelligence legislation in the 1990s. Public hearings, including
hearings with non-governmental witnesses, were commonplace.  To varying
degrees, Senators like Daniel Moynihan, Howard Metzenbaum, Arlen Specter,
Bob Kerrey, and others were thorns in the side of U.S. intelligence
agencies in support of public disclosure.

Over the past decade, however, the Committee's priorities appear to have
changed, to the detriment of public accountability.  In fact, despite the
Committee's assurance in its annual reports, public disclosure even of the
Committee's own oversight activities has decreased.

In 2012, the Committee held only one public hearing, despite the
prevalence of intelligence-related public controversies.  That is the
smallest number of public hearings the Committee has held in at least 25
years and possibly ever.  A non-governmental witness has not been invited
to testify at an open Committee hearing since 2007.

(A congressional official countered that in recent years confirmation
hearings had provided the occasion for most public hearings by the
Intelligence Committee, and that in 2012 there were simply no nominees
requiring hearings.  Meanwhile, the official noted, the Committee did
include a provision to reauthorize the Public Interest Declassification
Board in its markup of the 2013 intelligence bill.  And the Committee is
engaged with agency Inspectors General that are reviewing classification
practices in the intelligence community and elsewhere.  The Committee's own
web site has also been usefully supplemented with hearing records and
reports dating back to the 1970s.)

When annual disclosure of the intelligence budget total did finally become
a routine occurrence in 2007, it was principally through the legislative
efforts of Senators Joe Lieberman and Susan Collins of the Senate Homeland
Security Committee, not the Intelligence Committee.  Similarly, efforts to
strengthen oversight of intelligence by the Government Accountability
Office were led by Senator Daniel Akaka, again from outside the
Intelligence Committee.

(The Intelligence Committee did, however, legislate a requirement in 2010
for disclosure of the budget request for the National Intelligence Program.
 And it was cautiously supportive of an expanded role for GAO in
intelligence oversight.)

Most recently, the Intelligence Committee conducted a multi-year
investigation of the CIA's post-9/11 detention and interrogation program. 
It is, said Senator Dianne Feinstein, the Intelligence Committee chair, "by
far the most important oversight activity ever conducted by this
committee."  But the resulting report "will remain classified and is not
being released in whole or in part at this time," she said December 13. 
Its importance is evidently independent of any public impact it might have.

    http://www.fas.org/irp/news/2012/12/df121312.html

(A congressional official said there is an intent to make portions of the
report public over the coming months.)

Even in view of the contrary indications (noted above), and some others,
the dominant trend as we perceive it is that public accountability in
intelligence has been deemphasized.

Senator Feinstein made the point another way, when she said of the
Committee that "We are the public." 

"I mean, we are the public check on the Executive Branch," Sen. Feinstein
said during the FISA reauthorization debate on December 27, explaining why
she believed greater disclosure of information concerning government
surveillance activities was unnecessary. "We are not of the intelligence
community. We are the public, and it is our oversight, it is our due
diligence to go in and read the classified material."

Intelligence Committee Vice Chair Sen. Saxby Chambliss also said that the
Committees themselves provided public oversight by serving as proxies for
the public:  "In matters concerning the FISA Court, the congressional
Intelligence and Judiciary Committees serve as the eyes and ears of the
American people. Through this oversight, which includes being given all
significant decisions, orders, and opinions of the court, we can ensure
that the laws are being applied and implemented as Congress intended."

By these lights, public accountability is more or less superfluous. 
Senator Chambliss said that a report on the privacy impact of government
surveillance advocated by Sen. Ron Wyden was unnecessary, because "If we do
our job, there is absolutely no reason for this amendment--and we do our
job."

Members of the House Judiciary Committee last month expressed their own
confidence in non-public intelligence oversight.  They rejected a
resolution introduced by Rep. Dennis Kucinich to require the Attorney
General to produce legal justifications for the use of drones "relating to
the practice of targeted killing of United States citizens and targets
abroad," a subject of recurring public controversy.

In a December 18 report, the Committee said the Kucinich resolution was
unwarranted because "the House and Senate Intelligence Committees continue
to conduct robust oversight into the drone program that targets terrorists
and their associates."  Public controversy is beside the point.

    http://www.fas.org/irp/congress/2012_rpt/adverse.html

How should one understand the apparent diminished interest in public
accountability?  It is hard to say.  There is a strain of political
commentary that characteristically invokes official bad faith as the
sovereign explanation for all disfavored policy outcomes:  Officials act
the way they do -- instead of the way I wanted them to -- because they are
power-hungry or compromised by financial interest, social affiliation, or
personal ambition.  This is usually a lazy and self-serving explanation (if
my opponents are scoundrels, I must be okay) even if it is not always and
altogether wrong.

Another possibility is that intelligence collection is much more fragile
than is generally recognized.  A senior intelligence agency official said
recently that if the specific surveillance methods authorized by the FISA
Amendments Act were to become public knowledge, those methods could be
circumvented or defeated "without much difficulty."  The official did not
elaborate.

Even if that were true, however, it would not explain the broader trends
-- the declining number of public hearings on intelligence, the diminished
focus on declassification, the abandoned (or muted) commitment to
disclosure of "as much information as possible about intelligence
activities."

Nor does it fully explain the Senate's categorical rejection last month of
all of the proposed amendments to the FISA Amendments Act, which were about
as undemanding as they could be. (The intelligence community said that one
amendment to require preparation of an estimate of the number of American
communications collected was not feasible or would entail privacy
violations of its own). Most of the amendments would not have imposed any
change in policy or any compulsory disclosure, but only certain reporting
obligations, and even those had waivers for national security concerns.  As
far as oversight and accountability are concerned, these proposals were
practically de minimis, of homeopathic proportions, and yet they were
rejected by the Senate.

(Although Sen. Jeff Merkley's amendment to promote declassification of
opinions of the Foreign Intelligence Surveillance Court was among the
rejected proposals, Sen. Feinstein said that she would work together with
Sen. Merkley to help achieve that end.)

"What it comes down to is what we define robust congressional oversight in
a program such as this to be," said Sen. Ron Wyden of his amendment to the
FISA Amendments Act, which was voted down on December 28.

"Plain and simple--we need more information," said Sen. Mark Udall. "How
else can we evaluate this policy? The American public has a right to know.
And needs to know. How many Americans are affected by FISA? Are existing
privacy protections working? Are they too weak? Do they need to be
strengthened? These are vital questions. They need to be answered. And so
far they have not been."

Now, for the foreseeable future, they will not be answered, at least not
to anyone outside of the intelligence committees.

NEW CRS REPORTS ON TAX POLICY

New and updated reports from the Congressional Research Service that
Congress has not made available to the public include the following items
on tax policy.

International Corporate Tax Rate Comparisons and Policy Implications,
December 28, 2012:

        http://www.fas.org/sgp/crs/misc/R41743.pdf

Reform of U.S. International Taxation: Alternatives, December 27, 2012:

        http://www.fas.org/sgp/crs/misc/RL34115.pdf

Distributional Effects of Taxes on Corporate Profits, Investment Income,
and Estates, December 27, 2012:

        http://www.fas.org/sgp/crs/misc/RL32517.pdf

Tax Deductions for Individuals: A Summary, December 20, 2012:

        http://www.fas.org/sgp/crs/misc/R42872.pdf

Funding and Financing Highways and Public Transportation, December 26,
2012:

        http://www.fas.org/sgp/crs/misc/R42877.pdf

The Debt Limit: History and Recent Increases, December 27, 2012:

    http://www.fas.org/sgp/crs/misc/RL31967.pdf

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
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