Posts from August, 2008

ACLU Seeks to Intervene in FISA Court Proceedings

The American Civil Liberties Union is petitioning the secretive Foreign Intelligence Surveillance Court for leave to participate in future proceedings regarding the constitutionality of government procedures under the recent FISA Amendments Act, which expanded government authority to conduct intelligence surveillance.

The government opposes the ACLU petition (pdf). Justice Department attorneys wrote in a July 29 opposition motion (pdf) that since the relevant procedures are classified, “there is nothing that the ACLU could contribute to the Court’s resolution….”

The government’s opposition is misplaced, the ACLU replied yesterday (pdf), noting that it does not seek access to classified information, but only wishes to address the constitutionality questions that are before the Court.

“Because the FISA Amendments Act has such sweeping implications for the rights of U.S. citizens and residents, any consideration of these issues should be adversarial and as informed and transparent as possible,” the August 5 ACLU reply stated.

“This Court should not issue a secret opinion after hearing secret arguments — and from only one side,” the ACLU reply said. (I am mentioned in a footnote.)

In a separate proceeding, the ACLU is also challenging the constitutionality of the FISA Amendments Act in federal district court.

See “ACLU Challenges Unconstitutional Spying Law.”

The pleadings submitted to the FISA Court are also copied here.

While it isn’t Jarndyce v. Jarndyce, the famously interminable lawsuit in Dickens’ Bleak House, the current ACLU proceeding before the FISA Court is, strangely enough, Jaffer v. Jaffer.

The lead attorney on the ACLU petition is the estimable Jameel Jaffer, director of the ACLU’s National Security Program. Among the Justice Department attorneys opposing the ACLU petition is Jamil N. Jaffer, Counsel to the Assistant Attorney General.

Army Issues New Regulations on “Biological Surety”

U.S. Army personnel who act in an aggressive or threatening manner towards other people would be denied access to toxic or lethal biological agents under newly revised regulations (pdf) that were issued by the Army last week.

Other potentially disqualifying personality traits include: “arrogance, inflexibility, suspiciousness, hostility,… and extreme moods or mood swings,” according to the new regulations. See “Biological Surety,” Army Regulation 50-1, 28 July 2008.

The late Fort Detrick scientist Dr. Bruce E. Ivins retained his security clearance and his laboratory access through July 10, the Washington Post reported today, despite allegations of erratic behavior and the fact that he was under FBI suspicion in connection with the 2001 anthrax attacks. The credibility of some of those allegations regarding Ivins’ behavior, however, is itself open to question, writes Glenn Greenwald in Salon today.

GAO and Intelligence Oversight

The Government Accountability Office is among the most potent and productive tools of government oversight available. Perhaps for that reason, U.S. intelligence agencies have been reluctant to cooperate with GAO investigations.

Sen. Daniel Akaka introduced legislation last year to reaffirm GAO authority to investigate intelligence agency activities, and that legislation was the subject of a Senate hearing in February. All of the witnesses, including myself (pdf) and then-GAO Comptroller General David M. Walker (pdf), urged an increased role for GAO in intelligence oversight.

See the record of the February 29, 2008 hearing before the Senate Homeland Security and Governmental Affairs Committee on “Government-Wide Intelligence Community Management Reforms.”

As of March 2008, there were 1,000 GAO employees with Top Secret security clearances out of 3,153 total staff. Of those, 73 held SCI (“sensitive compartmented information”) clearances for access to intelligence information, according to a GAO letter supplied for the hearing record (pdf).

A bill adopted last week in the House, called the “Government Accountability Office Improvement Act” (HR 6388) did not explicitly address intelligence oversight by GAO.

New Details on the National Cyber Security Initiative

Almost everything about the Comprehensive National Cyber Security Initiative (CNCI), established by National Security Presidential Directive 54 and Homeland Security Presidential Directive 23, is classified.

But following a classified March 2008 hearing on the subject, Senators Joe Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee teased out a few unclassified details about the effort.

The response (pdf) includes information on the National Cyber Security Center, how privacy will be protected under the CNCI, how success of the initiative will be measured, and how the Department views the private sector’s role in the initiative,” the Senators noted in a news release. “The Department chose to redact information relating to contracting at the National Cyber Security Division (NCSD). The senators have asked DHS explain their reasons for the redactions.”

See also “DHS stays mum on new ‘Cyber Security’ center” by Stephanie Condon, CNET News, July 31.

And see, relatedly, the record of a May 21, 2008 hearing before the House Homeland Security Committee on “Implications of Cyber Vulnerabilities on the Resilience and Security of the Electric Grid” (pdf).

DoJ National Security Division Oversight Initiative

The Department of Justice National Security Division (NSD) “has dramatically broadened the scope of its national security oversight role,” according to a Department news release.

“The National Security Division plays a vital role in ensuring that national security investigations are conducted properly and with respect for the civil liberties and privacy interests of Americans,” said Matt Olsen, Deputy Assistant Attorney General for the Office of Intelligence. “Our enhanced oversight efforts over the past year represent a solid foundation from which we will continue to build as we work with the FBI and other intelligence agencies to achieve this goal.”

The news release is silent on the results, if any, of the new oversight reviews performed by NSD personnel.

But Division spokesman Dean Boyd told Secrecy News generally that “These reviews were designed to identify compliance issues and they have served that purpose. Where they have identified issues, the reviews have helped provide the factual basis to take appropriate follow-up action.”

A Bill to End Coercive Interrogations and Secret Detentions

A bill introduced by Sen. Dianne Feinstein and several Senate colleagues last week would “end coercive interrogations and secret detentions by the Central Intelligence Agency.”

“These practices have brought shame to our Nation, have harmed our ability to fight the war on terror, and, I believe, violate U.S. law and international treaty obligations,” Sen. Feinstein said.

“Our Nation has paid an enormous price because of these interrogations. They cast shadow and doubt over our ideals and our system of justice. Our enemies have used our practices to recruit more extremists. Our key global partnerships, crucial to winning the war on terror, have been strained,” she said.

“Look at two of our closest allies in the world. The British Parliament no longer trusts U.S. assurances that we will not torture detainees. The Canadian Government recently added the United States to its list of nations that conduct torture.”

“This is not the country that we want to be,” Sen. Feinstein said.

The bill is co-sponsored by Senators Rockefeller, Whitehouse, Hagel, Feingold, and Wyden.

Senate Bill Would Bar Secret Changes to Executive Orders

The President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate yesterday becomes law.

The bill, sponsored by Sen. Russ Feingold and Sen. Sheldon Whitehouse, responds to a Justice Department Office of Legal Counsel opinion that was revealed last year by Senator Whitehouse on the Senate floor. According to that unreleased opinion, “There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

What this means is that any published executive order may or may not actually be in effect. It may or may not correspond to the legal framework that governs the executive branch. The public has no way of knowing.

“No one disputes that a President can withdraw or revise an Executive Order at any time,” said Senator Feingold yesterday. “That is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law.”

“Worse,” he said, “because the published Order stays on the books, it actively misleads Congress and the public as to what the law is.”

To remedy that problem, the new bill requires notification of any change.

“If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change.”

“The bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified,” Sen. Feingold said.

“On rare occasions, national security can justify elected officials keeping some information secret,” he said, “but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that–deceiving the American people about what law applies to the government’s conduct.”

See Sen. Feingold’s July 31 introduction of the Executive Order Integrity Act of 2008 (S. 3405).

At an April 30 hearing of Sen. Feingold Senate Judiciary subcommittee, I testified on the various categories of secret law, including the problem of “reversible executive orders.” That testimony is available here (pdf).

A New Executive Order on Intelligence Activities

Following a lengthy interagency review process, the White House yesterday unveiled its amendments to Executive Order 12333, the foundational document on “United States Intelligence Activities” that was originally issued by President Reagan in 1981.

The new executive order reflects institutional changes that have occurred in recent years. In particular, it reinforces the authority of the Director of National Intelligence to oversee, coordinate and direct the activities of the sixteen-member intelligence community.

The ACLU found reason to criticize the revised order, which it said weakened protections against domestic spying. Members of Congress objected because they said they were not adequately consulted. To me, the changes seemed unexpectedly minor and in some cases positive.

The new executive order affirms, for example, that “The United States Government has a solemn obligation… to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.” Such a statement, in a presidential order that is intended to direct a rule-driven bureaucracy, is not nothing.

The old Reagan order did not even mention the words “civil liberties” or “privacy.” (Nor did it mention the term “covert action,” which the new order uses instead of the old euphemism “special activities.”)

To criticize (or praise) the provisions of the new executive order is to presume its status as a controlling document and a definitive source on intelligence policy. But a more troubling question is how much the order actually matters.

At a White House press briefing yesterday, one unnamed reporter [update 8/4/08: it was Pamela Hess of the Associated Press] asked: “What do you have to say to folks that say, essentially, it’s nice that you have this stuff in the executive order, but it doesn’t necessarily mean anything when a President gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?”

A “senior administration official” replied: “I think what we would say to that is that the executive order reaffirms the nation’s longstanding commitment to protecting civil liberties. It maintains all of the protections that are in place to do so. It requires that all procedures have to be approved by the Attorney General.”

But the question seems to be better than the answer, particularly since the Bush Administration’s so-called Terrorist Surveillance Program may have violated the terms of this very executive order on intelligence activities.

“The administration’s warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities,” said Sen. Russ Feingold, who was briefed on the program as a member of the Senate Intelligence Committee.

“Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration,” he said.

The new Feingold/Whitehouse bill described above that prohibits secret modifications or waivers of published executive orders would close this loophole. In so doing, it would also bolster the integrity and credibility of intelligence directives like Executive Order 12333.