[Intelforum] Secrecy News -- 09/02/10

Thu Sep 2 09:25:07 EDT 2010

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 70
September 2, 2010

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

**      FISA COURT PROPOSES NEW COURT RULES
**      GAO ACCESS TO INTELLIGENCE IN DISPUTE
**      U.S. NUCLEAR STOCKPILE SECRECY:  A VIEW FROM 1949

FISA COURT PROPOSES NEW COURT RULES

The Foreign Intelligence Surveillance Court has proposed new rules to
comply with the provisions of the FISA Amendments Act of 2008.  The Court
reviews government applications for intelligence surveillance and physical
search under the Foreign Intelligence Surveillance Act (FISA).

The proposed FISA Court rules provide new procedures by which
telecommunications companies can petition the Court to modify or dismiss a
court order or a directive from the Attorney General or the DNI requiring
them to assist in electronic surveillance, to provide "any tangible
thing," or to adhere to a nondisclosure requirement concerning
intelligence surveillance.  Meanwhile, other procedures would permit the
government to petition the Court to compel cooperation by a non-compliant
telecommunications provider.  A new section in the proposed FISA Court
rules accordingly addresses the conduct of "adversarial proceedings," a
term that does not appear in the current rules (last modified in 2006).

The proposed new rules make other minor editorial changes in current
procedures.  For example, the existing rules provide for publication of
FISA Court opinions, but state that "Before publication, the Opinion must
be reviewed by the Executive Branch and redacted, as necessary" to ensure
that properly classified information is not disclosed.  In a slight but
possibly noteworthy revision, the proposed new rules state that "Before
publication, the Court may, as appropriate, direct the Executive Branch to
review the order, opinion, or other decision and redact it as
necessary...."

The FISA Court has provided an opportunity for public comment on the new
rules.  Comments are due by October 4, 2010.  The draft rules, the
existing rules, and a link for submitting comments can all be found here:

http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/FISCRules.aspx

The FISA Amendments Act of 2008, which provided the impetus for the new
rules, was strongly opposed by civil liberties groups because it granted
immunity to telecoms that may have violated the FISA by implementing
President Bush's Terrorist Surveillance Program, which circumvented that
binding statute altogether.  The 2008 Amendments were also opposed by
several Senators who went on to become leading figures in the Obama
Administration and who expressed concern that the Act did not give the
FISA Court enough independent authority.

"Although the bill gives the FISA Court a greater role than earlier bills
did, it still fails to provide for a meaningful judicial check on  the
President's power," said Senator Joe Biden during the July 9, 2008 floor
debate on the Act.

Likewise, "while the bill nominally calls for increased oversight by the
FISA Court, its ability to serve as a meaningful check on the President's
power is debatable," said Sen. Hillary R. Clinton, explaining her decision
to vote against the Amendments.

	http://www.fas.org/irp/congress/2008_cr/fisa070908.html

But the FISA Amendments Act was supported by then-Senator Barack Obama,
along with a majority of other Senators and Congressmen, and it was
enacted into law.

GAO ACCESS TO INTELLIGENCE IN DISPUTE

The continuing controversy over whether the Government Accountability
Office will be permitted to participate in intelligence oversight, as some
in Congress wish, or whether cleared GAO auditors and investigators will be
excluded from intelligence oversight tasks, as the Obama Administration
prefers, was discussed in the Washington Post's Top Secret America blog
yesterday (September 1).

I participated in a Q&A on the issue with the Post's Dana Hedgpeth here:

     http://voices.washingtonpost.com/top-secret-america/

U.S. NUCLEAR STOCKPILE SECRECY:  A VIEW FROM 1949

The question of whether or not to disclose the number of nuclear weapons
in the U.S. arsenal "goes to the very heart of our democratic system of
government," said Senator Brien McMahon (D-CT) in a newly rediscovered
1949 speech on secrecy in nuclear weapons policy.

"Do we possess five bombs, or fifty bombs, or five hundred bombs?  Are we
strong or weak in the field of atomic weapons?  Only the Atomic Energy
Commissioners, high-ranking military men, and a few others know the
correct answer to these vital questions," Sen. McMahon said.

Sen. McMahon (1903-1952) was the principal author of the Atomic Energy Act
of 1946, which established the Atomic Energy Commission and placed control
of nuclear weapons in civilian hands.

"Though I have been a member of the Joint Congressional Committee on
Atomic Energy since its inception, and though I have just been elected its
chairman, I do not myself know how many bombs we possess or how rapidly we
are making new ones," he said.

"It is interesting to note that concealment of atomic production rates is
secrecy of a scope which has never been attempted before during peacetime
in the United States," Sen. McMahon said. He indicated that he had not
reached a definite conclusion as to whether the size of the stockpile size
should be made public.

The text of Senator McMahon's January 31, 1949 address to the Economic
Club of Detroit was entered into his rather voluminous FBI file, which was
obtained by researcher Michael Ravnitzky.  A copy of the speech is posted
here:

	http://www.fas.org/sgp/eprint/mcmahon.pdf

Illustrating the often glacial pace of secrecy reform, it was not until
May 3 of this year that the current size of the nuclear arsenal was
officially revealed for the first time.

      http://www.fas.org/blog/secrecy/2010/05/stockpile_declass.html

_______________________________________________
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