SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 26
March 28, 2003
** FOIA V. FISA
** WHAT MAKES DISCLOSURE SUSTAINABLE?
** MOYNIHAN AND SECRECY
** THE VICE PRESIDENT'S CLASSIFICATION AUTHORITY
** IN THE NEWS
FOIA VS. FISA
The proper boundaries of secrecy in domestic surveillance
activities are the subject of an important Freedom of
Information Act (FOIA) lawsuit brought by the American Civil
Liberties Union (ACLU), the Electronic Privacy Information
Center (EPIC), and other groups.
In particular, the plaintiffs are seeking information about the
impact of the USA Patriot Act, which increased government
surveillance authority under the Foreign Intelligence
Surveillance Act (FISA).
"The Patriot Act's surveillance provisions effect a dramatic
expansion in the government's ability clandestinely to monitor
people living in the United States, including citizens who are
not suspected of contravening any law or of acting on behalf
of a foreign power," the ACLU and EPIC state. "The public is
entitled to know how the DOJ is using the vast surveillance
powers that the Patriot Act authorizes."
Accordingly, the plaintiffs are requesting "aggregate,
statistical data and other policy-level information that, if
disclosed, would allow the public to evaluate the new powers
conferred by the Patriot Act and the manner in which the
government has used them." They stress that they do not seek
"records pertaining to particular terrorism or criminal
investigations [or] other information that could plausibly
jeopardize national security."
A March 21 legal memorandum filed by David Sobel of EPIC and Ann
Beeson, Jameel Jaffer and Arthur B. Spitzer of the ACLU spells
out their argument with clarity and vigor:
http://www.epic.org/privacy/terrorism/usapatriot/foia/sj-memo.pdf
The opposing argument that even the most general information
sought by the FOIA requesters would threaten national security
is presented by James A. Baker of the Justice Department
Office of Intelligence Policy and Review:
http://www.fas.org/irp/agency/doj/fisa/baker.pdf
Other selected case files and document releases may be found
here:
http://www.epic.org/privacy/terrorism/usapatriot/foia/
WHAT MAKES DISCLOSURE SUSTAINABLE?
What are the conditions under which information disclosure
policies attain their intended policy goals? Why do some
disclosure policies thrive and others stagnate and fail?
That is the subject of an interesting new academic paper
entitled "The Political Economy of Transparency: What Makes
Disclosure Policies Sustainable?" by Archon Fung, Mary Graham
and David Weil of the Institute for Government Innovation at
the Kennedy School of Government at Harvard University.
The authors examine several cases of information disclosure
policies that achieved differing levels of success in areas
such as nutritional labeling, investment risks, toxic
releases, and so on in an effort to model "the dynamics of
transparency policies."
They identify a range of factors that can contribute to
successful transparency, some of which are obvious (e.g.,
information must be "conveyed in a manner that is readily
interpretable by end users") and others that are less so
(e.g., "The more that significant groups of disclosers benefit
from releasing information, the more improvement one can expect
in the system.")
The authors do not specifically address national security
secrecy and disclosure, but some of their conclusions can be
readily extrapolated to that arena. For example, one could
infer that the Central Intelligence Agency would be more
likely to accept routine disclosure of the intelligence budget
if the Agency were persuaded that such disclosure would make
future reductions in intelligence spending more politically
difficult -- which is probably true.
"The Political Economy of Transparency" by Fung, Graham and
Weil, 56 pages, March 2003, is available here:
http://www.innovations.harvard.edu/research/papers/FGW.pdf
MOYNIHAN AND SECRECY
Daniel Patrick Moynihan devoted more time to thinking about
government secrecy than any other elected official. Senator
Moynihan, who died this week, made it respectable in elite
circles to acknowledge official secrecy as a problem and, at
least in the abstract, to criticize it.
Moynihan's own interpretation of secrecy was idiosyncratic and
not entirely reliable.
He made much of the supposed fact that in the late 1940s Gen.
Omar Bradley decided to keep the Venona intercepts of Soviet
communications secret from President Truman. But the document
he cites as proof does not say what he claims it says, a point
that eluded many reviewers. (See Moynihan's book "Secrecy:
The American Experience," Yale Univ Press, 1998, at pp. 70-72).
Senator Moynihan instigated and chaired the Commission on
Protecting and Reducing Government Secrecy which issued a
weighty report in 1997. The Commission membership could not
have been more highly placed and influential including, aside
from Moynihan, a sitting Director of Central Intelligence
(John Deutch), the White House Chief of Staff (John Podesta),
and the ultra-Conservative Senator Jesse Helms.
And yet the actual influence of the Commission's report was nil.
Its legislative recommendations were incrementally reduced to
nothing more than the creation of an advisory committee with
no independent authority, designated the Public Interest
Declassification Board, which was finally established in
statute in the Intelligence Authorization Act for 2001. In a
final insult, the membership of the Board was never named and
so it has never met.
Nevertheless, the Report of the Commission on Protecting and
Reducing Government Secrecy still stands as a tribute to
Moynihan's commitment to this problem and it remains an
outstanding introduction to the subject. A copy is posted
here:
http://www.fas.org/sgp/library/moynihan/index.html
THE VICE PRESIDENT'S CLASSIFICATION AUTHORITY
President Bush's new executive order 13292 on national security
classification, contrary to some reports, does not
substantially alter the Vice President's classification
authority.
It is true that the new order amends the definition of "original
classification authority" to explicitly include "the Vice
President in the performance of executive duties." This has
led some observers to conclude that Vice President Cheney has
now been given classification authority he did not previously
possess.
In a well-meaning editorial critical of the new Bush order, the
New York Times said that "for the first time, it gives the
vice president the power to classify information." See
"Secrecy: The Bush Byword," New York Times, March 28:
http://www.nytimes.com/2003/03/28/opinion/28FRI3.html
This is an error. The Vice President has long had Top Secret
original classification authority, including the power to
delegate that authority to others.
See this 1995 Presidential Order designating the Vice President
and other senior officials as "original classification
authorities":
http://www.fas.org/sgp/clinton/oca.html
IN THE NEWS
New scientific studies shed light on the genetic makeup of the
anthrax bacterium, prompting the latest round of discussions
as to whether such research poses a security threat and
whether it should be published. The decision in this case was
made in favor of publication, reports William J. Broad in "Key
to Strains of Anthrax is Discovered," New York Times, March 27:
http://www.nytimes.com/2003/03/27/international/worldspecial/27ANTH.html
Polygraph testing is not going away. "Life scientists who work
on sensitive government projects could find themselves hooked-up
to polygraph machines in spite of continued criticism of the
science behind such lie-detector tests," writes Peg Brickley
in "Pseudoscience applied to scientists," The Scientist, March
26:
http://www.biomedcentral.com/news/20030326/01/
"Without robust, reliable access to government information,
members of the public cannot function intelligently as
citizens, cannot meaningfully participate in the policy process
and cannot adequately evaluate the performance of their
elected representatives or hold the government institutions
accountable." Or so I opine in "The Bush Administration's
Suffocating Secrecy" in the weekly Forward, March 28:
http://www.forward.com/issues/2003/03.03.28/oped1.html
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
To SUBSCRIBE to Secrecy News, send email to
[log in to unmask]
with "subscribe" in the body of the message.
To UNSUBSCRIBE, send a blank email message to
[log in to unmask]
OR email your request to [log in to unmask]
Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html
_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: [log in to unmask]
voice: (202) 454-4691
|
