SECRECY NEWS
from the FAS Project on Government Secrecy
http://www.fas.org/blog/secrecy/
June 17-09
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 (pdf, 35pp) 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 (pdf) 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 Erection of a Wall Between Intelligence and Law Enforcement Investigations,” 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.
Jun 17-09
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 (pdf) 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...
Jun 17-09
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... [
Memorandum for Heads of Departmental Elements, pdf - 2pp, Jun5-09]
Jun 15-09
White House Intel Advisory Board Has No Members
President Obama has still not appointed anyone to the President’s Intelligence Advisory Board (PIAB), Secrecy News has learned.
The PIAB has broad responsibility for conducting internal executive branch oversight of intelligence, and it is specifically charged with alerting the President to intelligence activities that may be unlawful or contrary to executive order or presidential directive. Although the PIAB rarely releases its findings to the public, it is positioned to play a potentially important role in the intelligence oversight process. Its actual performance seems to depend on the qualifications of Board members, which have sometimes been minimal, as well as the receptivity of an Administration to the oversight process...
Jun 15-09
“Sensitive” Info in the Congressional Record
Rep. Frank Wolf (R-VA) placed two “
sensitive but unclassified” (SBU) State Department documents in the Congressional Record last week, illustrating the informal, non-binding character of this information control marking...
CAIR - Council on American-Islamic Relations
Jun 15-09
A Classified Objection to Gen. McChrystal
Gen. Stanley McChrystal was confirmed by the Senate last week to be the new commander of U.S. (and NATO) forces in Afghanistan, a role that he assumed today. But his nomination was opposed by Sen. Russ Feingold (D-WI) who objected to the General’s advancement on unspecified “classified” grounds...
Jun 15-09
DoD Role During Flu Pandemics, and More from CRS
June 3, 2009.
“Comprehensive Nuclear Test Ban Treaty: Updated ‘Safeguards’ and Net Assessments” (PDF, 37pp)
June 4, 2009.
“The Role of the Department of Defense During a Flu Pandemic” (PDF, 18pp)
“Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States,” June 2, 2009.
“The President’s Office of Science and Technology Policy: Issues for Congress,” updated June 3, 2009.
“Landsat and the Data Continuity Mission,” May 22, 2009.
“Geospatial Information and Geographic Information Systems (GIS): Current Issues and Future Challenges,” June 8, 2009.
Jun 10-09
Classification and the “Descent Into Torture”
The public has been significantly misled and misinformed concerning the practice of abusive interrogation by the U.S. government and the resulting damage to American political institutions,
said Senator Sheldon Whitehouse (D-RI) on the Senate floor yesterday.
“I am very sorry to say this–but there has been a campaign of falsehood about this whole sorry episode. It has disserved the American public. As I said earlier, facing up to the questions of our use of torture is hard enough. It is worse when people are misled and don’t know the whole truth and so can’t form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified,” Sen. Whitehouse said...