SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 35
May 18, 2015

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

ODNI: ANNEXES TO INTEL BILLS ARE NOT "SECRET LAW"

A recent article in Secrecy News indicated that the classified annexes that accompany the annual intelligence authorization bills were legally binding and constituted "secret law" (A Growing Body of Secret Intelligence Law, May 4).

Robert S. Litt, the General Counsel of the Office of the Director of National Intelligence, wrote in last week to dispute that characterization:

In short: The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.

We accept the correction.

A congressional intelligence committee staff member concurred.

"The majority of the classified annexes are distinct from the schedules of authorization and are where the Committees opine on and direct various things," the staff member said. "As a technical point, I believe that Bob is correct -- they don't have the force of law as they are not incorporated in the same way as the schedules."

"That said, we very much expect that the Executive Branch will follow them, which in fact it does. I don't know that this matters much, though. While it may not be secret law, it is secret text that the Congress approves and is presented to the President at the time of his signature and that we believe is binding in practical terms," the staff member added.

Thus, even if they do not entirely qualify as "secret law," the classified annexes still have normative force, helping to shape the direction and execution of intelligence policy.

They therefore retain their significance for government accountability, including congressional accountability. And yet as a category of documents, the annexes are completely withheld from the public even decades after they are produced. Unfortunately, that remains undisputed.

* * *

Its specific content aside, Mr. Litt's message is noteworthy as an uncommon act of official participation in public dialog.

In an open society, government officials ought to be reasonably accessible to the members of the public whom they ostensibly serve. But with some exceptions, they are not. Either they are insulated by layers of security, or they are isolated by hierarchical bureaucratic structures that make them unreachable. The secrecy-intensive culture of intelligence only aggravates the problem. Even an open government law like the Freedom of Information Act creates a procedural buffer that often impedes any kind of direct dialog.

Unlike most of his colleagues, Mr. Litt has been willing to engage with members of the public with some frequency. You can ask him a question. You can argue with him. He will argue with you. The point is that he is available to non-governmental interlocutors in a way that should be ordinary but is in fact unusual and exemplary. (See, for example, here, here and here.)

Mr. Litt's attentiveness to the nuances of an article in Secrecy News brings to mind a passage from Robert M. Gates' 1996 CIA memoir From the Shadows that is dear to the heart of small newsletter writers. The author was recalling Director of Central Intelligence Bill Casey whom he described as an omnivorous consumer of information from even the most obscure sources.

"Bill Casey was one of the smartest people I have ever known and certainly one of the most intellectually lively," Gates wrote (p. 217). "He subscribed to newsletters and information sheets that I sometimes thought couldn't have more than five readers in the world, and then he would ask if I had seen one or another item in them."

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

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