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Location: UFOUpDatesList.Com > 2002 > Aug > Aug 27

Secrecy News -- 08/27/02

From: Steven Aftergood<saftergood@fas.org>
Date: Tue, 27 Aug 2002 12:30:58 -0400
Fwd Date: Tue, 27 Aug 2002 10:14:02 -0400
Subject: Secrecy News -- 08/27/02


SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 83
August 27, 2002


**	FOREIGN INTELLIGENCE SURVEILLANCE COURT OPENS UP
**	APPEALS COURT BLASTS CLOSED IMMIGRATION HEARINGS
**	A LITTLE LEGAL MISDIRECTION FROM THE CIA


FOREIGN INTELLIGENCE SURVEILLANCE COURT OPENS UP

More information about the legal principles of domestic
surveillance of suspected foreign intelligence and terrorist
targets has become public in the past week than for many years
before.

The proximate cause of the new disclosures was a Senate
Judiciary Committee request to the Justice Department for a copy
of a secret court ruling on surveillance practices.  The
Ashcroft Justice Department characteristically rebuffed the
request.

But Senators Leahy, Specter and Grassley then turned to the
famously secretive Foreign Intelligence Surveillance (FIS)
Court, which authorizes surveillance and searches for
counterintelligence and counterterrorism purposes.  Remarkably,
the court responded with a small flood of previously
inaccessible documents.

Among them was a May 2002 FIS Court opinion which criticized and
revised the Justice Department's latest procedures for sharing
information between intelligence officials and law enforcement
personnel.

While Congress had clearly intended to reduce the barriers to
such information sharing, the Court found that the Justice
Department procedures had instead nearly eliminated them.
  Further, the Court said the procedures seemed intended to abuse
foreign intelligence surveillance authority for ordinary law
enforcement purposes.

"The 2002 procedures appear to be designed to amend the law and
substitute the FISA [i.e. the less demanding intelligence
surveillance standards] for Title III electronic surveillances
[i.e. the more demanding law enforcement standards].  This may
be because the government is unable to meet the substantive
requirements of these law enforcement tools, or because their
administrative burdens are too onerous."

The Court also revealed that false statements had been made by
the FBI in years past on more than 75 occasions in seeking
surveillance authorizations.

See the Court's May 2002 Memorandum Opinion and Order here:

http://www.fas.org/irp/agency/doj/fisa/fisc051702.html

The New York Times today refers to the Justice Department's 2002
procedures that were reviewed by the Court as "secret
regulations." But they are no longer secret, having been
released by the Court last week (through the Senate Judiciary
Committee).

See a copy of the March 2002 "Intelligence Sharing Procedures
for Foreign Intelligence and Foreign Counterintelligence
Investigations Conducted by the FBI" here:

http://www.fas.org/irp/agency/doj/fisa/ag030602.html

On August 21, the Justice Department filed an appeal with the
three-member Foreign Intelligence Surveillance Review Court,
challenging the FIS Court's May ruling.

Far from being cowed by the May decision, the Department's
appeal argues vigorously and rather persuasively that the FIS
Court misinterpreted the requirements of last year's USA Patriot
Act.

See the slightly redacted text of the Department's August 21
appeal here:

http://www.fas.org/irp/agency/doj/fisa/082102appeal.html

Much of the abundant commentary on the new court ruling and the
Justice Department's appeal has been marred by extreme
characterizations, erroneous claims and righteous indignation to
the point that one almost despairs of having a serious
conversation about the important issues involved.

But two critical editorials in the Washington Post have the
unusual virtue of being informed by a reading of the actual
documents.  See "The Limits of Trust" (Aug. 23, 26):

  http://www.washingtonpost.com/wp-dyn/articles/A51447-
2002Aug22.html

  http://www.washingtonpost.com/wp-dyn/articles/A61147-
2002Aug25.html


APPEALS COURT BLASTS CLOSED IMMIGRATION HEARINGS

In the latest rebuke to Bush Administration secrecy policy, a
federal appeals court ruled that "blanket closure" of
deportation hearings for September 11 detainees held on
immigration violations is not permissible.

Judge Damon J. Keith embellished his decision with several
rhetorical flights on behalf of the First Amendment.

"Democracies die behind closed doors. The First Amendment,
through a free press, protects the people's right to know that
their government acts fairly, lawfully, and accurately in
deportation proceedings. When government begins closing doors,
it selectively controls information rightfully belonging to the
people. Selective information is misinformation. The Framers of
the First Amendment 'did not trust any government to separate
the true from the false for us.'... They protected the people
against secret government."

See the August 26 court ruling here:

http://pacer.ca6.uscourts.gov/cgi-
bin/getopn.pl?OPINION=02a0291p.06


A LITTLE LEGAL MISDIRECTION FROM THE CIA

Whenever it finally denies a Freedom of Information Act request,
the Central Intelligence Agency always advises the requester
that "you have the right to seek judicial review of this
determination in a United States district court."  But sometimes
that's not true, and the requester effectively has no such
right.

Last week, the CIA issued a final denial of a 1995 FOIA request
for disclosure of the fiscal year 1995 and 1996 intelligence
budget totals.

(The FY 1997 and 1998 figures were declassified several years
ago, under pressure of litigation, but America's premier
intelligence agency evidently believes that prior budget
information -- dating back to 1947 -- becomes more sensitive
with time and must remain classified.)

As usual, the CIA denial letter held out the possibility of
judicial review.  But in this case, it was false and misleading.

The problem is that there is a six year statute of limitations
for filing Freedom of Information Act litigation.  Because CIA
had inexplicably drawn out its denial process for more than six
years since the 1995 FOIA request became eligible for review,
the right to seek judicial intervention had expired.

Any attempt to file suit at this point would be met with an
immediate CIA motion for dismissal, citing the statute of
limitations. (Secrecy News learned this the hard way earlier
this year.)

On the other hand, filing suit before a final agency denial has
been issued generally meets with the objection that the
requester has "failed to exhaust administrative remedies."

Secrecy News wrote to the CIA Inspector General this week
suggesting that it would be preferable if the CIA henceforth did
not include false promises of a right of judicial review in its
Freedom of Information Act correspondence.

Then maybe the Agency could think about developing reasonable
classification criteria and a functional FOIA program.

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

To SUBSCRIBE to Secrecy News, send email to
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Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691


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