A Growing Body of Secret Intelligence Law
After President Obama suggested in a 2013 speech that the CIA drone program could be transferred to the Department of Defense, Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage the move, Politico recalled in a story last month.
Classified legislative language has been generated by Congress and used to shape intelligence policy each year since the congressional intelligence committees prepared the first stand-alone intelligence authorization act in 1977 (for Fiscal Year 1978).
Though unpublished, those classified provisions have the force of law, the Senate Intelligence Committee declared in the FY 1978 intelligence authorization report (S.Rpt. 95-214, May 16, 1977):
“It is the intent of the committee that the classified report, although not available to the public, will nonetheless have the force of a Senate authorization bill; further that the Intelligence Community shall comply fully with the guidelines and limitations contained therein,” the intelligence authorization report said.
What were those guidelines and limitations that the Intelligence Community was obliged to comply with? That remains a secret almost four decades later, because that first classified committee report has never been made public. Neither has a single one of the subsequent classified annexes to the annual committee authorization bills. Though they may have the legal force of other authorizing legislation, their classified contents remain almost entirely inaccessible to the public.
“The idea of secret laws is repugnant,” a federal appeals court memorably said (Torres v. INS, 7th circuit, 1998). The court’s concern at the time was that “People cannot comply with laws the existence of which is concealed.” But compliance aside, secret laws are also problematic because people cannot challenge them or seek to amend them.
“Secret law” can take a variety of forms. The term is often invoked with respect to unreleased opinions of the Office of Legal Counsel that interpret the law for the executive branch in undisclosed ways. It can also apply to secret presidential directives that define national policies and to some other categories of government information.
The classified annexes to the annual intelligence bills appear to constitute secret law in a strict sense. They legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.
As U.S. foreign intelligence agency activities have expanded into non-consensual domestic collection practices and unconventional “enhanced” techniques, the secret laws that govern them become more than an abstract concern.
Only sporadically do particular provisions of classified annexes to the intelligence bills ever come to public knowledge, whether through leaks or official disclosures.
The account of Sen. Feinstein’s secret intervention to maintain the CIA drone program was first reported by Greg Miller in the Washington Post (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15, 2014).
On other occasions, the Senate Intelligence Committee has voluntarily disclosed some of its own classified actions, if only in broad outline. Thus, the Committee revealed in a retrospective report this year:
* “In the Intelligence Authorization Act for Fiscal Year 2014 and associated classified annex, the Committee recommended additional resources to help assure the IC meets [its] counterintelligence and security goals as soon as possible.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the DNI to provide an implementation plan for the Human Capital Vision.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 required the DNI create a governance and oversight model to provide the DNI and the Congress with the insight required to ensure IC ITE [the IC Information Technology Enterprise] meets milestones for performance, cost, and schedule. The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities.”
Secret intelligence legislation is a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.
“The declassification procedures for classified records created by committees of Congress, particularly classified reports and closed hearing transcripts, are irregular and limited,” said the Public Interest Declassification Board in a 2007 report on Improving Declassification.
“The classified records created by the Congress often provide unique and significant insights into national security policy, decision making, and the budget and oversight process at a given point in time,” the PIDB report said. “Yet, because the records of the committees are classified and never subjected to declassification review, the public and historians are largely unaware of their existence.”
The PIDB recommended that “formal procedures should be established for the declassification review of classified committee reports and hearing transcripts.” But with few exceptions, that recommendation has not been acted upon, and the number of declassified congressional reports remains disappointingly small.
One example of a declassified committee report is the release last year of a redacted summary of the SSCI report on CIA detention and interrogation. Another is the redacted 2002 final report of the congressional joint inquiry into the 9/11 terrorist attacks.
Over the years, the Senate Foreign Relations Committee has published declassified transcripts of the Committee’s executive sessions (closed hearings) in a series of twenty volumes covering 1947 through 1968. But after the latest volumes were published in 2007 and 2010 (covering hearings in 1967 and 1968), no further releases have been forthcoming from the Committee.
Update: For a response from ODNI, see Annexes to Intelligence Bills are not “Secret Law.”
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