A public interest group is trying to use the Freedom of Information Act to crack more than three decades of secrecy surrounding how the government deals with wrongdoing by intelligence agencies.
The Electronic Frontier Foundation, an open government advocacy group, sued in federal court Wednesday in San Francisco to force U.S. spy agencies to reveal any activities during the Bush administration that the agencies themselves acknowledge may have violated laws, presidential orders or the Constitution.
Presidential orders for three decades have required the intelligence agencies to report such incidences to the presidentially appointed Intelligence Oversight Board, created in 1976 in response to widespread abuses by intelligence agencies.
But the board operates in near total secrecy — a rare public report in 1996 chastised the CIA for not informing the State Department that its foreign operatives in Guatemala were involved in kidnapping, murders and other human rights abuses.
And the board’s power has been diminished recently. President George W. Bush signed an executive order last year that gave the national intelligence director the board’s powers to investigate wrongdoing and report potential crimes to the attorney general. The board can report to the president any misdeeds it feels are not being adequately addressed, but currently it has no members because President Barack Obama hasn’t appointed any since taking office six months ago.
The Electronic Frontier Foundation’s Nate Cardozo said the lawsuit is especially important now because some members of Congress have complained this year that the intelligence community hasn’t kept them informed about spy activities.
"One of the major purposes of this lawsuit is to see how the executive branch is exercising oversight," Cardozo said. "If Congress isn’t, then the IOB and the DNI is all that’s left."
The House Intelligence Committee decided last week to investigate whether the agencies failed to fully inform the Senate and House Intelligence committees about a secret program, never fully implemented, to deploy teams of killers to target al-Qaida leaders; Bush’s warrantless domestic wiretapping program; CIA’s use of waterboarding, or simulated drowning, to interrogate terrorism detainees; and its destruction of videotapes of interrogations.
The foundation filed FOIA requests with the CIA, FBI, Director of National Intelligence, National Security Agency and Departments of Homeland Security, Defense, Energy and State asking for their reports of potential misconduct to the board since 2001. They also sought to learn if any cases were referred to the attorney general for further action. Although FOIA requires the agencies to give some answer, most of the requests have been ignored, with a few exceptions that shed little light.
The Energy Department released several hundred pages with no reports of major wrongdoing. The Homeland Security Department turned over a few dozen, partially blacked out Coast Guard records that made no mention of illegal activity.
But the National Security Agency, the nation’s electronic spy agency, which conducted Bush’s warrantless surveillance program, turned over 238 pages that were almost completely blacked out. The documents revealed the agency’s inspector general conducted dozens of investigations into possible misdeeds between 2001-2006 but concealed what was investigated.
The NSA said the material could be withheld under national security and other exemptions to the FOI act.
Cardozo argued that illegal activity shouldn’t be protected. But Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, said FOIA exemptions for national security, law enforcement and other material probably make it unlikely a judge will force disclosure of all the records.
"By definition, what is at issue is intelligence-related information, most of which — rightly or wrongly — is classified," Aftergood said. "But what the lawsuit does very effectively is to cast a spotlight on this oversight mechanism and to raise questions about how it is being used. My bet is at the end of the process they will know more than they did going in."
Justice Department spokesman Charles Miller said the department is reviewing the lawsuit.