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The Must Read 2013 Secrecy Report is Out.

October 7, 2013

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“The misdirection in which our government has engaged and the use of secret law [are] as disturbing as the activities they have hidden.”

The District of Columbia (well before it shutdown, anyways) produces an unfathomable number of reports –GAO reports, CRS reports, IG reports, Chief FOIA Officer reporters, Congressional Reports, and the list goes on.

But, year in and year out, my favorite report always remains OpenTheGoverment.org’s Secrecy Report. And this one, released last week, did not disappoint.

To me, the Secrecy Report‘s strongest section is it’s opening, which notes that past Secrecy Reports under-reported the breadth of government surveillance, specifically under Section 215 of the USA PATRIOT ACT (National Security Letters) and Section 702 of the FISA Amendments Act of 2012 (permitting the real time bulk collection of American’s overseas communications).

This under-reporting, the Secrecy Report’s preface contends, was due to “the misdirection in which our government has engaged and the use of secret law,” which are “as disturbing as the activities they have hidden.”

In fact, the Report presents the best chronology I have seen of the efforts various government agencies used to obscure the methods of intelligence collection they utilized.

In Congressional Testimony, the Department of Justice touted the small number of specific Section 215 requests (“less than 40 times” a year in 2011 according to the acting head of the DOJ’s National Security Division Todd Hinnen), but obscured the sweeping quantity of the data these requests captured (a single FISC decision allowed for the bulk collections of metadata on calls “wholly within the United States, including local telephone calls.”)

Before Edward Snowden leaked this FISC order to Verizon, the Secrecy Report “along with nearly everyone else” (butressed by misleading congressional testimony like that quoted above) believed these 215 provisions were used only “in discrete requests to obtain individual collections of records about known counterintelligence or terrorist suspects.”  The leaked documents show this is not the case.

The Secrecy Report also criticized the National Security Agency for violating Section 702 of the Foreign Surveillance Act which permits “the real time bulk collection of American’s overseas communications (telephone calls and email, including the associated metadata) as long as the government is targeting foreigners abroad” and requirements and procedures of the Foreign Surveillance Court (FISC) are followed.  We now know, however, that these requirements and procedures were not followed.  A secret ruling, now declassified, found that the National Security Agency had violated the Constitution and made misrepresentations to the FISC (“the third instance in less than three years” of a “substantial misrepresentation regarding the scope of a major collection program).”  But until the “Snowden Revelations” the American public (and the Secrecy Report) had no knowledge of this Constitutional violation by the National Security Agency.

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“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”  “No sir… not wittingly.”

The Report finds that much blame for the vast expansion of secret intelligence collection and secret law resides with Congress, which “has caved to the demands of the executive branch that only a very small handful of Members…be allowed in on secret briefings to read secret documents –without members of their staffs who are experts on these laws and might be able to ask challenging questions.  The members cannot take notes and cannot speak of what they heard.  Rather than conduct oversight, the Congress has accepted the secret assurances of secret agencies about deeply secret programs, and has amended the law to expand the authority of the executioner well beyond what even the USA PATRIOT Act did.”

With the cards stacked against them by the government’s use of misdirection and secret law, as well as the inability or unwillingness of Congress to conduct oversight of the Intelligence Community, it is hard to fault past Secrecy Reports for under-reporting the levels of government surveillance.  This Report’s conclusion that leaks now allow us to understand what the government previously hid is also correct:

“While we agree with President Obama that the disclosures made by Edward Snowden are not the optimal way to have started the discussion about the secret law that has allowed startling levels of surveillance of purely domestic communications and digital activities of US persons, we also believe that the discussion would not have occurred otherwise.”

And this discussion is just a small piece of the report.  You’ll have to read the rest to see why “many [secrecy] trend lines may be pointing in the right direction, [but] the rate of change is not enough to create an open and accountable government.”

Below are just two more of my specific comments to this excellent report.

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*  I think the Report should have delved a bit deeper into the struggles of the National Declassification Center (page 25).  It reports that the NDC “has released 57 million pages to the public, a 61 percent release rate.”  But viewed more broadly, the NDC is poised to fail at President Obama’s December 2009 instruction that it “permit public access to all declassified records from the [357 million page] backlog no later than December 31, 2013.”

According to a NDC’s most recent report (released this August), only 71.5 million of these pages (20 percent) had been released to the public by August 2013, while 47 million (13 percent) had been reviewed and denied declassification. The remaining 239 million pages (67 percent) remain unreviewed for declassification.  A significant, but unknown, quantity of historic documents has accumulated to the NDC’s backlog since 2009.

From the August report.  The "NDC referral quality review process for national security information, including meeting the 'Kyl-Lott' requirements" does not mean "reviewed for declassification"

From the NDC’s August report. The “NDC referral quality review process for national security information, including meeting the ‘Kyl-Lott’ requirements” does not mean “reviewed for declassification”

According to the NDC, its “greatest challenge” has been a Department of Energy led Kyl-Lott re-review of the bulk of the documents for potential nuclear information.  But President Obama specifically instructed the Secretary of Energy (as well as  other Secretaries) to “provide the Archivist of the United States with sufficient guidance to complete this task [of reviewing and declassifying 357 million pages of historic documents by 2013].”  This has not been done.  (See the second half of this post for the history, overview, ramifications, and possible ways around Kyl Lott re-review.)

President Obama also instructed the National Declassification Center that “further referrals of these records are not required except for those containing information that would clearly and demonstrably reveal [confidential human sources or key WMD design concepts].”   Despite this presidential instruction, the NDC has continued the referral equity review process with these historic document set to be “automatically” declassified.  79 million pages are waiting for referral re-reviews.

"...No later than December 31, 2013."

“…No later than December 31, 2013.”  From the President’s December 29, 2009 Memorandum.

Because the National Declassification Center did not follow the instructions of the president’s memorandum regarding Kyl-Lott and referrals, and instead followed a “declassification as usual mindset,” it is poised to miss the December 2013 declassification deadline issued by the President of the United States.

*One more minor clarification on the Report’s discussion of ISCAP, the Interagency Security Classification Appeals Panel, sometimes called the “secrecy court of last resort” (page 29).

Because ISCAP has overturned 68 percent of agency classification decisions (in whole or in part) it has reviewed, it is perhaps the best tool requesters have to force the declassification of information which no longer needs to remain classified.

It is also useful because it can cut through referral regime which can lead multiple re-reviews of the same document (I’ve seen as many as 14) and the decades it takes to process some requests.

A requester can appeal to ISCAP if he or she does not receive a response to a Mandatory Declassification Review request from an agency within 365 days after it is filed (a common occurrence, especially if it is referred to other agencies).

But the window for appealing to ISCAP is very small– only 60 days after an agency misses its one year deadline.

That means at 425 days after a MDR is filed, a requester can no longer appeal to ISCAP for a review, and must wait wait for the agency’s (often slow) response before the request can be appealed.

Likewise, if an agency does not respond to an MDR appeal within 180 days, the requester only has sixty days (until 240 days have past) to “jump” the agency appeal and get to ISCAP.

So mark you calendars for one year after you file an MDR and 60 days after an MDR appeal!

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