Ordinarily, critics of government secrecy focus their ire — and their strategy — on executive branch agencies that refuse to release certain national security-related information to the public. But to an extent that is not widely recognized or understood, it is Congress that has erected barriers to greater openness and has blocked efforts to improve transparency.

Increased FISA Disclosure Blocked in House

The phenomenon of congressionally-sponsored secrecy was starkly illustrated in a new House Judiciary Committee report on the FISA Amendments Act, which governs intelligence surveillance for purposes of counterterrorism.

Despite well-founded concerns over the implementation of that law — even the DNI acknowledges it has been employed in an unconstitutional fashion “on at least one occasion” — the Committee voted to renew it until 2017 while rejecting amendments that would have provided increased public disclosure and accountability regarding the law’s use.

It is a simple fact that under the FISA Amendments Act “the government can and does intercept the communications of U.S. citizens, even in the absence of any particularized warrant or showing of probable cause,” stated the dissenting members of the Committee in the new report.

“The public has a right to know, at least in general terms, how often [this authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens,” the minority members wrote. But an amendment to require unclassified public reporting on these topics, offered by Rep. Bobby Scott (D-VA), was defeated 10-19.

Another amendment introduced by Rep. Jerrold Nadler (D-NY) would have required publication of unclassified summaries of decisions of the Foreign Intelligence Surveillance Court that have interpreted the law in significant ways. “This amendment aimed only to make the legal reasoning of the FISA Court available to the public. It also sought to ensure that the United States should not have a secret body of law.” It was rejected by a vote of 13-17.

A third amendment would have required the Inspectors General of the intelligence community and the Justice Department to produce a public estimate of how many Americans have already had their communications collected under this law. The amendment, by Rep. Sheila Jackson Lee (D-TX), failed by a vote of 11-20.

All of these amendments “would have left the underlying authorities of the FAA [FISA Amendments Act] intact, but would have required the government to make basic, non-sensitive information available to the public,” the dissenting members wrote in the new report. “The FAA is an important tool for intelligence gathering, but classified reports and secret court opinions are no substitute for public oversight.”

Remarkably, that is a minority view today. The majority in the House Judiciary Committee, and most likely in Congress as a whole, favors classified reports and secret court opinions, and it has little use for public oversight or public consent.

Congress Has Outlawed Bulk Declassification

The problem of congressionally-mandated secrecy is also manifest in the difficulties facing declassification of valuable historical records. The National Declassification Center was tasked by President Obama in 2009 to eliminate the backlog of nearly 400 million pages of 25 year old records awaiting declassification by the end of 2013.

By all indications, that goal will not be met and the President’s instruction will not be fulfilled. As a result, the Center has been criticized, by myself among others, as inadequate to its task. See, most recently, “Obama administration struggles to live up to its transparency promise, Post analysis shows” by James Ball, Washington Post, August 3.

But on closer inspection, much of the criticism directed toward the National Declassification Center is unfair. It misdiagnoses the problem. The Center and its director, Sheryl Shenberger, have been working energetically and creatively to develop improved declassification procedures and greater productivity. Records that were mistakenly believed to have been made public in the Clinton Administration are finally now becoming available in actuality. The pace of declassification is increasing. But not fast enough.

The primary reason that the Center will not meet its presidentially-assigned goal is not some latent preference for non-disclosure among the Center staff. Rather, the main problem is an obstacle created by Congress in the form of a 2000 statute known as the Kyl-Lott Amendment. That Amendment makes it impossible to perform bulk declassification of government records, no matter what their age or subject matter, unless they have been certified as “highly unlikely” to contain nuclear weapons-related information. In the absence of such certification, declassifiers at the Center and elsewhere have no choice but to conduct what amounts to page-by-page review.

Because this Kyl-Lott review requirement has been written into law by Congress, it trumps any “order” or goal that the President of the United States might set. No alternate set of procedures to protect classified nuclear weapons information would suffice to satisfy the law.

In effect, Congress has vetoed the possibility of bulk declassification of government records. Unless and until the Kyl-Lott Amendment is repealed, it is hard to see how the laborious, time-consuming declassification process can ever be transformed into something more sensible and efficient.

SSCI Giveth and Taketh Away?

One of the handful of genuine breakthroughs in national security transparency lately has been the public reporting on security clearances, and particularly the disclosure of the unexpectedly high number of cleared persons eligible for access to classified information.

The release of this information was not voluntary, but was the result of a statutory requirement in the FY 2010 intelligence authorization act. Thanks are due to the House and Senate Select Committees on Intelligence for legislating this precedent-setting disclosure.

Now, however, the Senate Select Committee on Intelligence (SSCI) has moved to repeal this two-year-old reporting requirement (in section 308 of S.3454), as requested by the intelligence community (h/t Emptywheel). Although it is consistent with recent Committee steps to curtail press and public access even to unclassified intelligence information, the logic of this move is hard to fathom.

If the Senate Committee’s repeal provision is adopted by Congress, this most basic measure of the size of the national security bureaucracy would cease to be updated and made publicly available. The secrecy and obscurity of the recent past would be restored.

Exercising the Power of the Purse

Every now and then, Congress does behave as the textbooks would lead one to expect. It pushes back against executive branch secrecy in order to protect its own institutional prerogatives, if not specifically the public interest in transparent and accountable government.

Last week, the Senate Defense Appropriations Subcommittee imposed a $13 million cut on secret Pentagon missile defense programs because it said that DoD did not provide the information that Senators had expected to receive:

“The Committee notes the poor briefing materials in support of classified programs despite requests made by the Committee for the inclusion of specific information. Therefore, the Committee does not believe that the budget request for these programs was fully and appropriately justified and recommends an undistributed reduction of $13,600,000. The Director of the Missile Defense Agency is directed to submit a list of classified projects against which this reduction is levied not later than 90 days after enactment of this act.”

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Overall, the strange congressional propensity for executive branch secrecy presents a conundrum and a challenge to advocates of greater openness and accountability. It is probably unrealistic to expect executive agency officials to take significant steps to provide greater public disclosure of national security information if a majority in Congress is on record opposing such steps.