SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 82
August 20, 2008

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SENATORS SAY SECRECY IMPEDES OVERSIGHT OF TORTURE POLICY

By resisting congressional requests for documents, the Bush Administration has effectively diminished Congress's oversight power, as the review of government policy is often replaced by lengthy contests over access to records.

In the final six months of the current Administration, for example, the Senate Judiciary Committee still finds itself unable to gain access to influential records of the Justice Department Office of Legal Counsel (OLC) relating to interrogation, detention and torture.

"After more than five years of requests, we have only recently received access to redacted versions of OLC legal opinions related to the CIA's interrogation program," wrote Senator Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA) on August 19.

"The failure to provide other documents that we have sought repeatedly, however, leaves us without basic facts that are essential to this Committee's ability to conduct its oversight responsibilities."

"I have been stonewalled even in my repeated request for something as simple as an index of OLC opinions," wrote Sen. Leahy.

The Administration has not asserted executive privilege in this area, and national security classification is not a barrier to the cleared Committee staff. The requested documents have simply not been provided.

In a letter to White House Counsel Fred Fielding, Senators Leahy and Specter asked Mr. Fielding to turn over ten specified legal memoranda and other OLC documents on detention and interrogation policies.

The Senators set a deadline of Friday, August 29 at 10 AM for delivery of the requested documents. They did not indicate how they might respond if the documents are not received.


WHITE HOUSE SIGNING STATEMENTS "UNSUBSTANTIATED," REPORT SAYS

The Bush Administration's use of presidential signing statements to indicate disapproval of enacted legislation has generated confusion and has undermined congressional oversight of national defense policy, the House Armed Services Committee said in a report this week.

One problem is that the Bush White House often fails to articulate the basis of its objections or their specific application in practice, the report said, terming White House objections "broad and unsubstantiated."

"The functionality of a signing statement is greatly reduced if it is too vague to identify the concerns of the President and the interpretation of the law that the President is trying to convey to the executive branch," the Committee report said.

Yet in issuing a signing statement indicating constitutional reservations about portions of the FY2008 defense authorization act, the President did not even identify all of the provisions that he found objectionable, the report said.

"While presidents have issued signing statements for quite some time, this President has issued a significantly larger percentage of signing statements challenging or objecting to various provisions of the law."

"Signing statements may, if used appropriately, serve a legitimate function as a tool for continuing dialog between the President, Congress, and the public. On the other hand, signing statements may be a mechanism to expand executive authority at the expense of the legislature," the Committee report said.

The report identified options for improving oversight, such as using signing statements as a roadmap for targeted oversight of particular provisions opposed by the Administration, and introducing legislating to require formal notification of agency refusal to implement particular statutes.

See "Presidential Signing Statements," Findings of the Subcommittee on Oversight and Investigations, House Armed Services Committee, August 18:

The Committee held a hearing on signing statements, referenced in the new report, on March 11. Prepared testimony from that hearing is available here:


IRAQ SIGNS THE COMPREHENSIVE TEST BAN TREATY

The Government of Iraq yesterday signed the Comprehensive Test Ban Treaty, which prohibits all nuclear explosive testing.

"We welcome the decision by Iraq to sign the CTBT," Tibor Tąth, the Executive Secretary of the Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) said in a statement. "This is particularly significant given the multitude of challenges facing the Government of Iraq today: It is a strong political signal for nuclear disarmament and non-proliferation. My hope is that it will encourage other countries of the region and beyond to follow suit."

A total of 179 States, now including Iraq, have signed the CTBT. The Treaty does not take effect, however, until it is signed and ratified by the 44 States that participated in the Treaty's negotiations in 1996 and possessed nuclear power or research reactors at the time.

Thirty-five of those States have ratified the Treaty, including three declared nuclear weapon States: France, Russian Federation, and the United Kingdom. The nine remaining States which have not yet signed ratified the Treaty are China, North Korea, Egypt, India, Indonesia, Iran, Israel, Pakistan, and the United States. India, Pakistan and North Korea have neither signed nor ratified the Treaty. The others have signed it.

For additional background, see "Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments," Congressional Research Service:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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