The unauthorized disclosure last week of a Justice Department White Paper
on the legality of targeted killing of senior al Qaida operatives who are
Americans had the collateral effect of strengthening congressional
oversight of intelligence.
The leak not only fulfilled a stalemated congressional effort to provide
information to the public, but it also catalyzed the long-sought disclosure
of classified documents to the intelligence committees themselves.
Although the intelligence committees received the White Paper in June
2012, they proved powerless on their own to gain its broader public
release, or to acquire their own copies of the underlying legal memoranda.
“I have been calling for the public release of the administration’s
legal analysis on the use of lethal force--particularly against U.S.
citizens--for more than a year," said Sen. Dianne Feinstein, the chair of
the Senate Intelligence Committee in a February 5 statement. "That analysis
is now public...."
In other words, what the chairman of the Senate Intelligence Committee was
unable to accomplish for over a year was achieved by a resourceful reporter
(Michael Isikoff of NBC) along with a cooperative source. That is a
peculiar fact that ought to prompt some soul-searching on the part of the
Committee, which has been relentlessly critical of intelligence-related
leaks.
But the disclosure did more than just make the White Paper available to
the public and launch a substantial public debate on its contents. It also
enhanced the ability of the intelligence committees themselves to gain
access to additional classified records on which oversight depends.
Specifically, it was the leak of the White Paper that enabled the belated
disclosure of two classified Office of Legal Counsel memoranda to the
intelligence committees last week.
The causal relationship between the leak and the release of the OLC memos
was made explicit by White House press secretary Jay Carney at a February 7
press gaggle.
"I mean, there has always been some interest, obviously, but there has
been heightened interest. I think that what you've seen in the -- because
of the public disclosure of the white paper, is that that interest reached
higher levels than in the past, and therefore this decision was made to
make this extraordinary accommodation to provide classified Office of Legal
Counsel advice," Mr. Carney said.
http://www.fas.org/sgp/news/2013/02/wh020713.html
This statement neatly illustrates the synergy that can exist among robust
national security reporting, public awareness and effective intelligence
oversight.
Yet the Senate Intelligence Committee in particular seems to have lost
sight of the benefits for its own work of press attention and public
engagement. The February 7 hearing on the nomination of John Brennan to be
Director of CIA marked the end of a period of more than one year -- dating
from January 31, 2012 -- without a public hearing. This may be an
unprecedented hiatus in the history of the Senate Committee. (The House
Intelligence Committee has held public hearings more frequently.) In light
of last week's events, the nearly exclusive emphasis on closed hearings
should perhaps be reconsidered.
DOJ WHITE PAPER RELEASED AS A MATTER OF "DISCRETION"
Late Friday afternoon, the Department of Justice released an official copy
of its White Paper on lethal targeting of Americans to Freedom of
Information Act requesters, including FAS and Truthout.org, several days
after it had been leaked to the press.
http://www.fas.org/irp/eprint/doj-lethal.pdf
The official version appears to be identical to the document posted by NBC
News, except that it contains a notation on the first page stating "Draft
November 8, 2011." (It also lacks the heavy-handed NBC watermark.)
"The Department has determined that the document responsive to your
request is appropriate for release as a matter of agency discretion," wrote
Melanie Ann Pustay, director of the Office of Information Policy at the
Department of Justice.
http://www.fas.org/sgp/news/2013/02/oip-020813.pdf
This is a surprising statement, because as recently as two or three weeks
earlier, the Department had said exactly the opposite.
"The document is protected by the deliberative process privilege, and is
not appropriate for discretionary release at this time," wrote Paul Colborn
of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to
the New York Times.
http://documentcloud.org/documents/566817-white-paper-foia-denial.html
What changed in the interim? Obviously, the fact that the document leaked
-- and had already been read by most people who cared to do so -- altered
DoJ's calculation. The decision to cease withholding the document in light
of its public availability displays some minimal capacity for
reality-testing. To continue to insist that the document was protected and
exempt from release would have been too absurd.
But the Freedom of Information Act process is supposed to meet a higher
standard than "not absurd," and in this case it failed to do so.
According to a FOIA policy statement issued by Attorney General Eric
Holder in 2009, "an agency should not withhold information simply because
it may do so legally. I strongly encourage agencies to make discretionary
disclosures of information. An agency should not withhold records merely
because it can demonstrate, as a technical matter, that the records fall
within the scope of a FOIA exemption."
The Attorney General's policy cited President Obama's own statement on
FOIA which declared that "The Government should not keep information
confidential merely because public officials might be embarrassed by
disclosure, because errors and failures might be revealed, or because of
speculative or abstract fears."
The pre-leak withholding of the White Paper on targeted killing appears to
have been inconsistent with both policy statements. It is now clear that
only "speculative or abstract fears" were at issue, not actual hazards.
Was the release of the memo "a threat to national security"? A reporter
asked that question at the White House press briefing on February 5. "No.
No," said Press Secretary Jay Carney. "It wasn't designed for public
release, but it's an unclassified document."
"And since it is out there," he added, "you should read it."
http://www.fas.org/sgp/news/2013/02/wh020513.html
Last week, Reps. Darrell Issa and Elijah Cummings of the House Committee
on Oversight and Government Reform asked the Department of Justice to
explain several apparent inconsistencies between FOIA policy and actual
practice.
"The Committee seeks information about a number of issues including what
many term as outdated FOIA regulations, exorbitant and possibly illegal fee
assessments, FOIA backlogs, the excessive use and abuse of exemptions, and
dispute resolution services," they wrote in a February 4 letter.
http://www.fas.org/sgp/congress/2013/ogr-oip.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html
To UNSUBSCRIBE, go to
http://www.fas.org/sgp/news/secrecy/unsubscribe.html
OR email your request to saftergood@fas.org
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html
_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood
The official Website of Bernd Pulch. Since 2009 providing critical insights and political Satire on lawfare, media control, and political reality. Avoid fake sites.
Bernd Pulch 