SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 18
February 11, 2013

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

LEAK OF WHITE PAPER BOOSTS INTELLIGENCE OVERSIGHT

The unauthorized disclosure last week of a Justice Department White Paper on the legality of targeted killing of senior al Qaida operatives who are Americans had the collateral effect of strengthening congressional oversight of intelligence.

The leak not only fulfilled a stalemated congressional effort to provide information to the public, but it also catalyzed the long-sought disclosure of classified documents to the intelligence committees themselves.

Although the intelligence committees received the White Paper in June 2012, they proved powerless on their own to gain its broader public release, or to acquire their own copies of the underlying legal memoranda.

"I have been calling for the public release of the administration's legal analysis on the use of lethal force--particularly against U.S. citizens--for more than a year," said Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee in a February 5 statement. "That analysis is now public...."

In other words, what the chairman of the Senate Intelligence Committee was unable to accomplish for over a year was achieved by a resourceful reporter (Michael Isikoff of NBC) along with a cooperative source. That is a peculiar fact that ought to prompt some soul-searching on the part of the Committee, which has been relentlessly critical of intelligence-related leaks.

But the disclosure did more than just make the White Paper available to the public and launch a substantial public debate on its contents. It also enhanced the ability of the intelligence committees themselves to gain access to additional classified records on which oversight depends.

Specifically, it was the leak of the White Paper that enabled the belated disclosure of two classified Office of Legal Counsel memoranda to the intelligence committees last week.

The causal relationship between the leak and the release of the OLC memos was made explicit by White House press secretary Jay Carney at a February 7 press gaggle.

"I mean, there has always been some interest, obviously, but there has been heightened interest. I think that what you've seen in the -- because of the public disclosure of the white paper, is that that interest reached higher levels than in the past, and therefore this decision was made to make this extraordinary accommodation to provide classified Office of Legal Counsel advice," Mr. Carney said.

This statement neatly illustrates the synergy that can exist among robust national security reporting, public awareness and effective intelligence oversight.

Yet the Senate Intelligence Committee in particular seems to have lost sight of the benefits for its own work of press attention and public engagement. The February 7 hearing on the nomination of John Brennan to be Director of CIA marked the end of a period of more than one year -- dating from January 31, 2012 -- without a public hearing. This may be an unprecedented hiatus in the history of the Senate Committee. (The House Intelligence Committee has held public hearings more frequently.) In light of last week's events, the nearly exclusive emphasis on closed hearings should perhaps be reconsidered.


DOJ WHITE PAPER RELEASED AS A MATTER OF "DISCRETION"

Late Friday afternoon, the Department of Justice released an official copy of its White Paper on lethal targeting of Americans to Freedom of Information Act requesters, including FAS and Truthout.org, several days after it had been leaked to the press.

The official version appears to be identical to the document posted by NBC News, except that it contains a notation on the first page stating "Draft November 8, 2011." (It also lacks the heavy-handed NBC watermark.)

"The Department has determined that the document responsive to your request is appropriate for release as a matter of agency discretion," wrote Melanie Ann Pustay, director of the Office of Information Policy at the Department of Justice.

This is a surprising statement, because as recently as two or three weeks earlier, the Department had said exactly the opposite.

"The document is protected by the deliberative process privilege, and is not appropriate for discretionary release at this time," wrote Paul Colborn of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to the New York Times.

What changed in the interim? Obviously, the fact that the document leaked -- and had already been read by most people who cared to do so -- altered DoJ's calculation. The decision to cease withholding the document in light of its public availability displays some minimal capacity for reality-testing. To continue to insist that the document was protected and exempt from release would have been too absurd.

But the Freedom of Information Act process is supposed to meet a higher standard than "not absurd," and in this case it failed to do so.

According to a FOIA policy statement issued by Attorney General Eric Holder in 2009, "an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption."

The Attorney General's policy cited President Obama's own statement on FOIA which declared that "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

The pre-leak withholding of the White Paper on targeted killing appears to have been inconsistent with both policy statements. It is now clear that only "speculative or abstract fears" were at issue, not actual hazards.

Was the release of the memo "a threat to national security"? A reporter asked that question at the White House press briefing on February 5. "No. No," said Press Secretary Jay Carney. "It wasn't designed for public release, but it's an unclassified document."

"And since it is out there," he added, "you should read it."

Last week, Reps. Darrell Issa and Elijah Cummings of the House Committee on Oversight and Government Reform asked the Department of Justice to explain several apparent inconsistencies between FOIA policy and actual practice.

"The Committee seeks information about a number of issues including what many term as outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive use and abuse of exemptions, and dispute resolution services," they wrote in a February 4 letter.

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

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