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Senators Introduce Bill for Oversight of State Secrets Privilege

It’s no surprise that the Bush administration wants to invoke the state secrets privilege in court when it can. Plainly speaking, this White House loves its secrets.

But a couple of influential senators are trying to provide some oversight for the use of the state secrets privilege, which allows the government to prevent sensitive national security information from being publicly disclosed as evidence in court.

Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Pa.) introduced on Jan. 22 the State Secrets Protection Act (S. 2533). The bill would require courts in civil lawsuits to look at the evidence for which the administration is trying to use the privilege and assess whether the administration’s assertions are valid, according to a statement from Kennedy. Currently, there is no law giving courts guidelines for the use of the states secret privilege in civil cases.

“When federal courts accept the executive branch’s state secrets claims as absolute, our system of checks and balances breaks down,” Kennedy said in his statement. “By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice.”

Posted 01-30-2008 6:25 PM EDT

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White House E-mails Go Missing

Missing: 473 days’ worth of White House e-mails.

Yes, for hundreds of days between 2003 and 2005, the White House has no archives of e-mail messages for one or more of its offices, according to the summary of an internal White House study released by House Oversight and Government Reform Committee Chairman Henry Waxman (D-Calif.) that was covered in The Washington Post.

Early in the Bush administration, the White House threw out the custom archiving system the Clinton administration had adopted under a federal court order, according to the Post. Instead, the Bush administration has been using an inadequate e-mail archiving system.

According to the Post, no presidential office e-mails were archived on Dec. 17, 20 or 21 in 2003, which was the week after Saddam Hussein’s capture. And no e-mails were archived in the vice president’s office for four days in early October 2003 - dates that match up with the beginning of the Justice Department probe into the leak of a CIA officer’s identity, according to a summary of the White House study.

Of course, the White House is disputing the credibility of its own study. White House spokesman Tony Fratto said there was no evidence that e-mails are missing.

Guess the White House study doesn’t count as evidence …  

Posted 01-22-2008 5:46 PM EDT

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Bush Secrecy Efforts Crumbling

At long last, the pillars of the administration’s secrecy are beginning to crumble somewhat.

According to a Jan. 13 Washington Post story:

On Jan. 8, a federal magistrate ordered the administration to reveal whether it had backup copies of missing White House e-mails;

  • In December, a federal judge ruled that presidential visitor lists - which Bush had kept secret - are public records;
  • On Dec. 31, Bush signed a bill speeding the release of documents requested under the Freedom of Information Act;
  • In October, the Directorate of National Intelligence released the $43.5 billion intelligence budget - the disclosure of which was required under a bill passed by Congress in early 2007.

“The administration has brought these challenges on itself,” said Sen. Susan Collins (R-Maine), the top Republican on the Senate Homeland Security and Governmental Affairs Committee. She favored disclosing the intelligence budget. “By trying to keep secret information that doesn’t need to be secret, it invites skepticism of all of its secrecy claims.”

The Post story does note that the administration has been victorious in its quest for secrecy. For instance, the Foreign Intelligence Surveillance Court rejected in December a request by the American Civil Liberties Union to release documents on the warrantless wiretapping program.

Such losses are terrible and contribute to the atmosphere of secrecy. But the victories - which are increasing in number - are encouraging.

Posted 01-22-2008 5:32 PM EDT

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Senior Bush Lawyers Discussed CIA Videotapes

Top White House lawyers were involved in discussions with the CIA about whether to destroy videotapes showing secret interrogations of two Al Qaeda operatives, according to a Dec. 19 New York Times story.

Unnamed officials are saying these lawyers were involved in the discussions to a much greater degree than the administration had said. Those who took part, according to the officials, included Alberto R. Gonzales (White House counsel until early 2005), David S. Addington (former counsel to Vice President Dick Cheney and now his chief of staff), John B. Bellinger III (senior lawyer at the National Security Council until January 2005) and Harriet E. Miers (successor to Gonzales as White House counsel).

And while previous reports said some administration officials advised against destroying the tapes, which occurred in November 2005, the Times story notes some conflicting recollections of what actually happened.

“One former senior intelligence official with direct knowledge of the matter said there was ‘vigorous sentiment’ to destroy the tapes among some top White House officials,” according to the newspaper.

But other officials said no one at the White House wanted to destroy the tapes. “Those officials acknowledged, however, that no White House lawyer gave a direct order to preserve the tapes of advised that destroying them would be illegal,” according to the Times.

The plot thickens …

Posted 12-19-2007 11:53 AM EDT

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Congress Passes Bill to Strengthen Freedom of Information Act

Finally, government transparency wins a battle!

On Dec. 18, Congress gave its OK to a bill that would speed up the sometimes years-long process of obtaining public documents under the Freedom of Information Act (FOIA).

The law already says that agencies must respond within 20 days of a FOIA request. But in reality, the process can drag out for months, or even years. This bill would require public tracking numbers to be assigned to requests. And if an agency exceeds the 20-day deadline, the agency could not charge FOIA requesters for research or copying costs, according to The Washington Post.

“In an era of increased government secrecy, we cannot postpone reforming the very act that keeps our government open to the people whose government this is,” said Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.). “FOIA helps make government accountable and responsive to the people.”

If you’re keeping score, today it’s Transparency: 1. Secrecy: 0.

 

Posted 12-19-2007 11:51 AM EDT

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Court Keeps Decisions About Warrantless Wiretapping Program Under Wraps

A federal court that generally operates in secrecy is, not surprisingly, keeping secret the details of the courts decisions on the National Security Agency’s warrantless wiretapping program, according to a Dec. 12 New York Times story.

Two recent decisions by the Foreign Intelligence Surveillance Court’s decisions are known, but the reasoning behind them is not. One, a January ruling, allowed the administration to operate the program under the Foreign Intelligence Surveillance Act. A May ruling was more restrictive, leading the administration to request that Congress change the act.

The American Civil Liberties Union (ACLU) asked the court to release the opinions that detail the two rulings because the public had a right to know the information during a recent congressional debate on the issue. A federal court’s interpretation of federal law should not be kept secret, contends Jameel Jaffer, director of the National Security Project at the ACLU.

In his Dec. 11 ruling, Judge John D. Bates, who sits on the surveillance court and the Federal District Court in Washington, D.C., agreed that enhanced public scrutiny could provide an additional safeguard against mistakes, overreaching and abuse.

But that does not outweigh the need or right of the government to keep the material classified, Bates said.

Posted 12-12-2007 12:20 PM EDT

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CIA Destroys Videotapes Showing ‘Severe Interrogation Techniques’

In 2005, the CIA destroyed at least two videotapes showing the agency’s interrogation of two al-Qaeda operatives, according to a Dec. 7 New York Times story.

Why destroy the tapes? Because the agency was concerned about the legal risks of the video, which showed CIA operatives using “severe interrogation techniques” on terrorism suspects.

“The destruction of the tapes raises questions about whether agency officials withheld information from Congress, the courts and the Sept. 11 commission about aspects of the [agency’s secret detention] program,” according to the Times.

After the Times told the CIA that it was preparing to publish an article on the tapes’ destruction, Gen. Michael V. Hayden, the CIA director, told employees that the agency had acted “in line with the law.”

According to Hayden’s statement, the tapes were a “serious security risk,” and if they got out to the public, they would have exposed agency officials “and their families to retaliation from Al Qaeda and its sympathizers.”

Hayden also said leaders of congressional oversight committees were informed about the tapes and told about the decision to destroy them. But Rep. Peter Hoekstra (R-Mich.), who was the House Intelligence Committee chairman between 2004 and 2006, and Rep. Jane Harman (D-Calif.), the committee’s top Democrat between 2002 and 2006, said they were not told about the decision to destroy the tapes.

In fact, Harman said that she told CIA officials years ago that destroying interrogation tapes would be a “bad idea,” according to the Times.

“How in the world could the CIA claim that these tapes were not relevant to a legislative inquiry?” she said. “This episode reinforces my view that the CIA should not be conducting a separate interrogations program.”

 

 

Posted 12-07-2007 5:43 PM EDT

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White House Secrets: The Abramoff Edition

The Secret Service is living up to its name: The agency has identified some highly sensitive documents related to White House visits by imprisoned former superlobbyist Jack Abramoff that, it says, cannot be released to the public, according to a Dec. 2 Associated Press story.

The Secret Service’s concerns would prevent the production of the documents in a civil lawsuit, even though the Bush administration agreed last year to produce all relevant    records about Abramoff’s visits to the White House.

“This is an extraordinary development and it raises the specter that there were additional contacts with President Bush or other high White House officials that have yet to be disclosed,” said Tom Fitton, president of Judicial Watch, the conservative watchdog group that filed the suit. “We’ve alleged that the government has committed misconduct in this litigation, and frankly this is more fuel for that fire.”

Extraordinary development, indeed.

 

Posted 12-04-2007 1:03 PM EDT

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'Early Warning' Data Kept Out of Public's Reach

The National Highway Traffic Safety Administration (NHTSA) on Oct. 19 released a final rule thwarting public access to early warning information about motor vehicle safety hazards. 

Despite losing in the courts, the administration insists on trying again to produce a rule that will keep the public in the dark about potential defects and other safety hazards in the cars they drive.

The final rule released Oct. 19 restricts public access to much of the "early warning data" submitted by the auto and tire industry under the 2000 Transportation Recall Enhancement, Accountability and Documentation Act (TREAD Act) to assist in the early identification of motor vehicle safety defects.

LEARN MORE. 

Posted 10-22-2007 10:16 AM EDT

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Court to Bush: Secretive Tactics Are Illegal

President Bush’s executive order to limit public access to presidential records violates the Presidential Records Act, a federal court ruled Monday in a suit filed by Public Citizen. In an attempt to keep secret records of former presidents and vice presidents, Bush’s order had wrested away control from the National Archives and essentially given office holders veto power over release of their papers.

Learn more. 

Read the opinion.

Posted 10-02-2007 3:22 PM EDT

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