SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 19
March 4, 2014

Secrecy News Blog: http://blogs.fas.org/secrecy/

DISCLOSURE OF FISA COURT OPINIONS: LEGAL ISSUES (CRS)

Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court? Maybe not, a new analysis from the Congressional Research Service concludes.

The CRS report -- entitled "Disclosure of FISA Court Opinions: Select Legal Issues" -- has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information.

"The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials -- a question not definitively resolved by the courts," the report says.

This is not a new question, but it is usefully reviewed and summarized by the CRS report.

The issue arises because "The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress's generally broad ability to require disclosure of agency documents may be constrained when it implicates national security."

Although no statute regulating classification has ever been ruled unconstitutional, "Congress's power to compel the release of information held by the executive branch might have limits," CRS said. "There may be a limited sphere of information that courts will protect from public disclosure," just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.

The unsurprising bottom line is that "proposals that allow the executive branch to first redact information from FISA opinions before public release appear to be on firm constitutional ground." However, the CRS report said, "a proposal that mandated all past FISA opinions be released in their entirety -- without any redactions by the executive branch -- might raise a separation of powers issue."

All of this may seem academic and politically inapt since there are no active proposals in Congress to compel public release of FISA court opinions that are completely unreviewed or unredacted.

In fact, Congress has arguably been derelict in failing to press more assertively for release of legal rulings of the FISA court, and for disclosure of the general contours of the telephony bulk collection program. Had Congress forcefully required the publication of such information, much of the angst and turmoil of the past nine months that resulted from the Snowden disclosures might have been avoided.

The new CRS report has a couple of other noteworthy omissions.

It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.) Though this authority has never yet been exercised, it remains available in principle.

The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.

So, for example, the Senate Intelligence Committee enacted a requirement in the FY 2010 Intelligence Authorization Act (Section 601) that the executive branch must disclose the annual budget request for the National Intelligence Program when the annual budget is submitted. Previously, the intelligence budget request had always been classified information. To save constitutional appearances and assuage the concerns of executive branch lawyers, the Act did include a provision for the President to waive the requirement on national security grounds -- but he has never yet done so.

Last week, the Electronic Privacy and Information Center obtained copies of declassified Justice Department reports on the use of pen registers and trap and trace devices under the Foreign Intelligence Surveillance Act from 2000 to 2013.


DROUGHT IN THE US, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Drought in the United States: Causes and Current Understanding, February 26, 2014:

The 2014 Quadrennial Defense Review (QDR) and Defense Strategy: Issues for Congress, February 24, 2014:

FY2014 National Defense Authorization Act: Selected Military Personnel Issues, February 24, 2014:

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, February 25, 2014:

Critical Infrastructures: Background, Policy and Implementation, February 21, 2014:

EU-U.S. Economic Ties: Framework, Scope, and Magnitude, February 21, 2014:

Syria: Overview of the Humanitarian Response, February 25, 2014:

Democratic Republic of Congo: Background and U.S. Policy, February 24, 2014:

Transatlantic Trade and Investment Partnership (TTIP) Negotiations, February 4, 2014:

Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy, February 26, 2014:

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

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