[Intelforum] Secrecy News -- 06/17/09

Wed Jun 17 13:07:40 EDT 2009

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 53
June 17, 2009

Secrecy News Blog:  http://www.fas.org/blog/secrecy/

**      9/11, INFO SHARING AND "THE WALL"
**      2008 DNI BRIEFING: QUESTIONS FOR THE RECORD
**      ENERGY SECRETARY CHU EMBRACES FOIA POLICY

9/11, INFO SHARING AND "THE WALL"

The rise of "the wall" between intelligence and law enforcement personnel
that impeded the sharing of information within the U.S. government prior
to September 11, 2001 was critically examined in a detailed monograph that
was prepared in 2004 for the 9/11 Commission.  It is the only one of four
staff monographs that had not previously been released.  It was finally
declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified that the failure
to properly share threat information in the summer of 2001 could be
attributed to Justice Department policy memoranda that were issued in 1995
by the Clinton Administration.  That is an erroneous oversimplification,
the staff monograph contends:  "A review of the facts... demonstrates that
the Attorney General's testimony did not fairly and accurately reflect" the
meaning or relevance of those 1995 policy documents.  For one thing, those
policies did not even apply to CIA and NSA information, which could have
been shared with law enforcement without any procedural obstacles.

But if Attorney General Ashcroft was misinformed, he was not alone.  The
1995 procedures governing information sharing between law enforcement and
intelligence "were widely misunderstood and misapplied" resulting in "far
less information sharing and coordination... than was allowed."  In fact,
"everyone was confused about the rules governing the sharing and use of
information gather in intelligence channels."

"The information sharing failures in the summer of 2001 were not the
result of legal barriers but of the failure of individuals to understand
that the barriers did not apply to the facts at hand," the 35-page
monograph concludes.  "Simply put, there was no legal reason why the
information could not have been shared."

The prevailing confusion was exacerbated by numerous complicating
circumstances, the monograph explains.  The Foreign Intelligence
Surveillance Court was growing impatient with the FBI because of repeated
errors in applications for surveillance.  Justice Department officials
were uncomfortable requesting intelligence surveillance of persons and
facilities related to Osama bin Laden since there was already a criminal
investigation against bin Laden underway, which normally would have
preempted FISA surveillance.  Officials were reluctant to turn to the FISA
Court of Review for clarification of their concerns since one of the judges
on the court had expressed doubts about the constitutionality of FISA in
the first place.  And so on.  Although not mentioned in the monograph, it
probably didn't help that public interest critics in the 1990s (myself
included) were accusing the FISA Court of serving as a "rubber stamp" and
indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the
problem, then changing the law may not be the solution.  The document,
which had been classified Secret, was released with some small though
questionable redactions.  See "Legal Barriers to Information Sharing: The
Wall Between Intelligence and Law Enforcement Investigations," 9/11
Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special
Projects, August 20, 2004:

	http://www.fas.org/irp/eprint/wall.pdf

2008 DNI BRIEFING: QUESTIONS FOR THE RECORD

For the first time in several years, the Senate Select Committee on
Intelligence has once again published unclassified responses from the
Director of National Intelligence to questions for the record arising from
the DNI's 2008 annual threat briefing to Congress.  In the past, such
formal responses to Congress have offered an unexpected wealth of
information and updated intelligence.

Unfortunately, the latest answers were transmitted to the Committee in May
2008 and not published until May 2009, so to a large extent they are stale,
have been overtaken by events, or are of limited historical interest.  But
in some cases, they present pithy statements of official policy or
otherwise interesting interpretations of events:

"We are unequivocally opposed to leniency for Mr. [Jonathan] Pollard," the
convicted spy.

"For a number of reasons, we believe China poses a significantly greater
foreign intelligence threat today than it did during most of the cold war
era."

"The Intelligence Community plays a crucial role in the protection of U.S.
persons and national interests from emerging or re-emerging disease
outbreaks.  The IC provides earliest possible warning... using both
clandestine collection and open source collection of foreign print and
electronic media."

See the DNI responses to questions for the record from the February 5,
2008 hearing on Current and Projected National Security Threats to the
United States, transmitted to the Senate Intelligence Committee May 2,
2008:

     http://www.fas.org/irp/congress/2008_hr/020508threat-qfr.pdf

ENERGY SECRETARY CHU EMBRACES FOIA POLICY

The controversial idea of the "unitary executive" in which all executive
power is vested in the President of the United States may be a coherent
legal theory.  But in reality, things don't happen within the executive
branch simply because the President commands them.  In practice, what we
have is a "fragmentary executive" the efficacy of which is entirely
dependent on the competence and the good faith of thousands of officials
who must consciously choose to implement the declared policies of the
Administration.

With that in mind, it is noteworthy that the Secretary of Energy, Steven
Chu, reiterated and endorsed the President's Freedom of Information Act
policy in a memorandum to senior Energy Department officials this month.

"All DOE employees have the responsibility to ensure the success of the
agency's FOIA program," Secretary Chu wrote.  "We can no longer use
competing agency priorities and insufficient technological support as a
basis for not responding to requests expeditiously.  DOE employees should
no longer view FOIA as an additional duty.  It is your responsibility to
ensure that FOIA requests are responded to in a timely manner."

"I want to make it clear that DOE will adhere to the President's and
Attorney General's guidance," Secretary Chu concluded.  See "Freedom of
Information Act," memorandum for heads of departmental elements from
Energy Secretary Steven Chu, June 5, 2009 (thanks to nukewatch.org):

	http://www.fas.org/sgp/othergov/doe/foia060509.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 at fas.org
voice:  (202) 454-4691