The Foreign Intelligence Surveillance Court (FISC), which authorizes
intelligence surveillance activities, acknowledged in 2007 that it has
issued "legally significant decisions that remain classified and have not
been released to the public."
In 2010, the Office of the Director of National Intelligence and the
Department of Justice undertook to declassify those Court rulings, but
since then none has been released. Why not?
"We tried," a senior intelligence agency official said, but the rulings
were hard to declassify. After redacting classified operational information
and other sensitive details, no intelligible text of any consequence
remained, according to this official.
The Department of Justice made a similar assertion years ago in response
to a lawsuit brought by the ACLU, stating that "Any legal discussion that
may be contained in these materials would be inextricably intertwined with
the operational details of the authorized surveillance."
Although the 2010 declassification initiative has not been formally
cancelled, it is unclear how or why the failure to date to declassify the
FISC orders would change.
In the debate over reauthorization of the FISA Amendments Act, Sen. Jeff
Merkley offered an amendment that was intended to break the current
impasse. If a surveillance court order could not be declassified, the
amendment proposed, then an unclassified summary of the order should be
prepared. (If even that were not possible, the amendment would have
required a report on the status of the declassification process.)
http://www.fas.org/irp/congress/2012_cr/faa-amend.html#fisc
The Merkley amendment, like others, was rejected by the full Senate. But
Senator Dianne Feinstein, the Intelligence Committee chair, offered her
assistance to Sen. Merkley in advancing public access to FIS Court
opinions.
"If the opinion cannot be made public, hopefully a summary of the opinion
can," Sen. Feinstein said on December 27. "And I have agreed with Senator
Merkley to work together on this issue."
But the intelligence agency official said that unclassified summaries of
surveillance court decisions were probably not a satisfactory alternative.
A summary written by the Department of Justice would not be a statement of
the court's opinion at all, the official said. At best, it would represent
the Administration's own understanding of what the court had ruled,
paraphrased for public release.
What if the Court itself were to prepare its opinions in a "tearline"
format, with a general statement of its findings presented separately from
the more highly classified specifics of the case under discussion? Would
that not facilitate declassification and release of the court rulings?
"That might work," the official said. However, he said, it would be
"awkward" for agencies to presume to tell the court how to format its
opinions.
But it would not be awkward for members of Congress to make such a
request, perhaps in a forthcoming letter referenced by Sen. Feinstein.
"I have offered to Senator Merkley to write a letter requesting
declassification of more FISA Court opinions," she said. "If the letter
does not work, we will do another intelligence authorization bill next
year, and we can discuss what can be added to that bill on this issue."
In the past, a handful of FISA Court opinions have been declassified and
made public, including a FISC opinion dated May 17, 2002, a FIS Court of
Review (FISCR) opinion dated November 18, 2002, and a FISCR opinion dated
August 22, 2008.
NEW PROCEDURES FOR INTELLIGENCE SYSTEM ACQUISITION
The Director of National Intelligence issued a directive last month
prescribing procedures for major system acquisitions by elements of the
intelligence community.
The directive defines a multi-phase process for identifying critical
needs, evaluating alternative paths to meet those needs, and so forth.
See Intelligence Community Directive 115, "Intelligence Community
Capability Requirements Process," December 21, 2012:
http://www.fas.org/irp/dni/icd/icd-115.pdf
REACHING THE DEBT LIMIT, AND MORE FROM CRS
New and updated reports from the Congressional Research Service which
Congress has directed CRS not to release to the public include the
following.
Reaching the Debt Limit: Background and Potential Effects on Government
Operations, January 4, 2013:
http://www.fas.org/sgp/crs/misc/R41633.pdf
The "Fiscal Cliff" and the American Taxpayer Relief Act of 2012, January
4, 2012:
http://www.fas.org/sgp/crs/misc/R42884.pdf
Proposals to Change the Operation of Cloture in the Senate, January 3,
2013:
http://www.fas.org/sgp/crs/misc/R41342.pdf
International Trade and Finance: Key Policy Issues for the 113th Congress,
January 4, 2013:
http://www.fas.org/sgp/crs/misc/R42882.pdf
Speakers of the House: Elections, 1913-2013, January 4, 2013:
http://www.fas.org/sgp/crs/misc/RL30857.pdf
The Endangered Species Act (ESA) and Claims of Property Rights "Takings",
January 7, 2013:
http://www.fas.org/sgp/crs/misc/RL31796.pdf
The Role of TARP Assistance in the Restructuring of General Motors,
January 3, 2013:
http://www.fas.org/sgp/crs/misc/R41978.pdf
Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, January
4, 2013:
http://www.fas.org/sgp/crs/row/RL30588.pdf
U.S.-Taiwan Relationship: Overview of Policy Issues, January 4, 2013:
http://www.fas.org/sgp/crs/row/R41952.pdf
North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation,
January 4, 2013:
http://www.fas.org/sgp/crs/nuke/R41259.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
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood
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Bernd Pulch 