Senate Intel Committee Blocks Report on 'Secret Law'

August 2nd, 2011
by Steven Aftergood
Secrecy News from the FAS Project on Government Secrecy

The Senate Intelligence Committee rejected an amendment that would have required the Attorney General and the Director of National Intelligence to confront the problem of "secret law," by which government agencies rely on legal authorities that are unknown or misunderstood by the public.

The amendment, proposed by Sen. Ron Wyden and Sen. Mark Udall, was rejected on a voice vote, according to the new Committee report on the FY2012 Intelligence Authorization Act.

"We remain very concerned that the U.S. government's official interpretation of the Patriot Act is inconsistent with the public's understanding of the law," Senators Wyden and Udall wrote. "We believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret."

The Senators included dissenting remarks, along with the text of their rejected amendment, in the Committee report.

Sen. Wyden and Sen. Udall also offered another amendment that would have required the Justice Department Inspector General to estimate the number of Americans who have had the contents of their communications reviewed in violation of the FISA Amendments Act of 2008. That amendment too was rejected, by a vote of 7-8. All Committee Republicans, plus Democrat Bill Nelson (D-FL), opposed the amendment.

"It is a matter of public record that there have been incidents in which intelligence agencies have failed to comply with the FISA Amendments Act, and that certain types of compliance violations have continued to recur," Senators Wyden and Udall wrote. "We believe it is particularly important to gain an understanding of how many Americans may have had their communications reviewed as a result of these violations."

"We understand that some of our colleagues are concerned that our amendment did not explicitly state that the final report of the Inspector General's investigation should be classified. We respectfully disagree that this is necessary," they said. "In any event, we are confident that the executive branch will seek to classify any information that it believes needs to be secret, and that it is not necessary for Congress to direct that particular reports be classified."

The Senate Intelligence Committee report was silent on the status of the Committee's investigation of the CIA's post-9/11 detention and interrogation program, which has been underway for over two years.

The Obama Administration is invoking the state secrets privilege to seek partial dismissal of a lawsuit alleging unlawful surveillance of Southern California mosques, reported Josh Gerstein in Politico on August 1.

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