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Broad New Authority. Is the Oversight Sufficient?
Congress passed the Intelligence Reform Bill (S2845) on Dec. 9 and President Bush signed it into law a week later. It is the most sweeping reorganization of the nation’s intelligence community since 1947, giving a new Director of National Intelligence vast new authority over intelligence collection and sharing by 15 federal agencies. Congressional leaders assured that the bill is designed to provide as much transparency as possible when balanced against security needs, however the new law contains fewer congressional checks on that balance than initially proposed.
- Intelligence Issues for Congress, CRS 12-9-04
- Intelligence Reorganization – Effects on DOD, CRS 12-6-04
- Proposals for Intelligence Reform, 1949 – 2004
A Fourth Level of Classification
SSI – Sensitive Security Information
To survive in our nation’s capital, you need a working knowledge of Acronym, the formal albeit unofficial (FAU) language of bureaucracy. Acronym is what you need to know so you know what you can’t know. SSI, CII, SHSI, SBU and FOUO are all current letter combinations that limit the public’s right to know and therefore your newsgathering. Each of these – and all of them collectively – represent a fourth level of classified information, more or less sanctioned by Congress, and enforced by expansive departmental regulations that have installed secrecy under the mantle of national security. Sensitive Security Information (SSI) is potentially the most expansive because it covers any information deemed to relate to transportation of any kind.
- See comments filed by CJOG and 9 member organizations
CII – Critical Infrastructure Information
Critical Infrastructure Information is the identifier used by the Department of Homeland Security for information voluntarily submitted to it by owners of the nation’s infrastructure – utilities and chemical plants. Even the fact that some information has been filed is confidential. DHS is debating whether to gather this confidential information through other federal agencies, which collect information that is now public record from the same infrastructure owners.
- See the objections filed by CJOG and 14 member organizations.
SHSI – Sensitive Homeland Security Information
This has yet to be publicly defined, although a Department of Homeland Security directive is anticipated any time. It would cover information shared with other departments, state and local governments and first responders, and be enforced through non-disclosure agreements that carry stiff fines and prison terms. DHS recently ask all of its employees to sign such agreements.
SBU -- Sensitive But Unclassified information, and FOUO -- For Official Use Only
The Homeland Security Act authorized DHS to identify and safeguard “sensitive unclassified information” but it didn’t define the term. The department issued a “For Official Use Only” directive in May defining SBU as any information whose “unauthorized disclosure could adversely impact” someone’s privacy or “the conduct of Federal programs” or other programs or operations “essential to the national interest.” The department revised the memo on Jan. 6 to eliminate the use of non-disclosure agreements to enforce the protection of information. The definition of SBU did not materially change.
Congressional Research Service: A Brief History of Access to Information
There’s no provision for information sharing in the Constitution. And for many years, the executive branch used “artful interpretation” of a 1789 housekeeping statute to limit public and interagency access to records. Historian Harold Relyea, in a Congressional Research Service review, notes that the reform Administrative Procedure Act of 1946 indicated that matters of official record should be available to the public, but then said accesscould be denied for “for good cause found” or “in the public interest.” His report offers a quick review of access laws.
The Freedom of Information Act was first adopted in 1966, amended in 1974, and amended again in 1996 to include electronic records. More than three million requests are filed each year and for many, it's a long wait before the documents are produced. For journalists, filing a FOIA request should be a last resort.
On August 24, the Department of Health and Human Services finally responded to requests from journalism groups to clarify the privacy provisions of the act. State law prevails.
John Ashcroft’s directive, issued a month after 9/11, reversed FOIA policy at federal departments and agencies. In place of a "presumption of openness" standard, it offered support for any legal barrier to disclosure.
The White House Chief of Staff's directive to agencies and departments to review their "safeguarding" procedures and tighten records controls.
A Historical Look at the Withholding of Information
A Congressional commission took a long look at federal government secrecy in the mid-90s and concluded, 50 years after adoption of the National Security Act, that things had gotten out of hand. It said the best way to protect secrecy was to reduce it. The study led by the last Sen. Daniel Moynihan provides a comprehensive look at the history of federal government secrecy from colonial days through the fall of communism.
Minority Critique of the Last Four Years
In September, 2004, a minority report of the House Committee on Government Reform concluded that the past four years have seen “an unprecedented assault on the principle of open government.” The report for Rep. Henry Waxman takes a hard look at the policies and practices of the current administration.
