FY2010 Intel Authorization Act

September 29, 2010

* FY2010 Intelligence Authorization Act

This one appears set for enactment shortly, once the House gets to it. The full text of the bill and the precise details of the compromise among the White House, Senate, and House can be found here (FAS has posted an excerpt from the Congressional Record that opens with Senator Feinstein’s explanatory statement introducing the amended bill, followed by a letter from ODNI-GC Robert Litt setting forth the administration’s understanding of the compromise, and then the (lengthy) amended text of the bill itself). Here are the key points regarding the compromise, as well as a selection of other interesting items in the bill:

1. Oversight of Covert Action – Gang of Eight Notification

Nothing earth-shattering here after all. The executive branch continues to have the option in exceptional cases to limit distribution of a covert action finding to the Gang-of-Eight; when it uses that option it now must alert the other members of the intel committees that it has done so and must provide a “general description” as to why; and the executive branch must revisit the decision not to permit wider notification after 180 days.

2. Notification of the Legal Predicate for Covert Actions and for Intelligence Activities Other than Covert Action

The bill amends 50 USC 413a(a)(2) so as to make clear that the committees may request information about “the legal basis under which the intelligence activity is being or was conducted”. It does the same re covert action notification under 50 USC 413b(b)(2). According to the letter from ODNI-GC described above, the administration understands this

“only to require that the Executive Branch provide the committee with an explanation of the legal basis for the activity; it would not require disclosure of any privileged information or disclosure of information in any particular form.”

Thus this provision would not purport to entitle the committees to demand to see, say, an OLC memo discussing the legal foundation for some particular activity. Presumably the same is true with respect to the comparable language added to the covert action notification provision.

3. GAO Auditing

Here is how the ODNI-GC letter summarizes the compromise:

The proposed Senate amendment includes a new provision that would require the Director of National Intelligence to issue a directive, in consultation with the Comptroller General, governing access of the Comptroller General to information in the possession of an Intelligence Community element. Nothing in this provision changes the underlying law with respect to GAO access to intelligence information. We interpret this provision to provide the DNI with wide latitude when developing the directive to ensure that it conforms with (1) the statutory provisions governing GAO’s jurisdiction and access to information; (2) the intelligence oversight structure embodied in the National Security Act; and (3) relevant opinions of the Office of Legal Counsel of the Department of Justice.

4. Cybersecurity Provisions

Section 336 of the bill directs the President to notify Congress in 30 days after enactment of all cybersecurity programs then “in operation,” and to do the same within 30 days of any new program thereafter. The notification must include “the legal basis for the cybersecurity program,” any certification that may have been required under 18 USC 2511(2)(a)(ii)(B), the concept of operations for the program, any privacy assessment from the relevant agency, any plans for independent audit or review, and any recommendations for legislative change. Then the responsible agency head must give Congress an annual report, after consultation with the agency’s inspector general (note the increasing reliance on this form of intra-executive checking; you might also want to look at various other IG-related provisions, the general thrust of which is to touch up their independence a bit; note, too section 433 which creates an NSA “director of compliance”), concerning the results of any audits/reviews or similar compliance-type inquiries.

In addition, the same provision requires the DHS IG and the IG for the Intelligence Community [who is that, you ask? See section 405 of the bill] to jointly submit to Congress and the President a report on “the sharing of cyber-threat information.” Further, the DNI, in coordination with others, has one year to produce a report to Congress proposing legislation or guidelines relating to cybersecurity.

5. A Public Report on Recidivism by Released GTMO Detainees

Who says Congress won’t pass laws dealing with detention policy? Why right here in section 334, Congress will require DNI in 60 days to produce a public, unclassified summary of intel relating to recidivism of GTMO detainees, and an assessment of the likelihood that past or current detainees “will engage in terrorism or communicate with persons in terrorist organizations.” Seriously, that’s in there.

6. More reports…

I’m not sure how many total reports are required by this bill, but there are a whole lot. Many sound quite useful, some less so. Either way, it’s going to make a lot of people very busy….

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General Dynamics v. United States (cert. granted in state secrets case), al-Odah v. United States (cert. petition filed in GTMO habeas case

September 29, 2010

1. General Dynamics v. United States (Supreme Court grants cert. in a state secrets case)

The Supreme Court granted cert. yesterday in General Dynamics v. United States and Boeing v. United States, both arising out of the massive, long-running contract dispute associated with the cancellation of the A-12 Avenger II program. The question presented? As framed in General Dynamics: ”Whether the government can maintain its claim against a party when it invokes the state secrets privilege to completely deny that party a defense to the claim.” As framed in Boeing, it’s basically the same thing, but with specific reference to Fifth Amendment Due Process concerns.

While any Supreme Court decision on the state secrets privilege is newsworthy, and much rides on this one both for the immediate litigants and others who become embroiled in similar disputes, we should not expect this to have much impact on the far-more controversial state-secrets cases such as Mohamed v. Jeppessen Dataplan. At the end of the day, the controversy surrounding cases like Jeppessen stems in large part from the idea that the privilege can be used even when its effect is to prevent courts from considering claims of illegal government conduct. The A-12 litigation, in contrast, presents the issue whether the government can itself advance a claim against a private entity while simultaneously invoking the privilege to deprive that entity of a defense. Should a majority of the Court side with the General Dynamics and Boeing in this instance, anticipate that the decision will be written narrowly so as to avoid being seen to speak to the Jeppessen controversy. Of course, it remains possible that the Court also will grant cert. in Jeppessen itself, though I predict they won’t.

SCOTUSblog provides access to the cert petition and other papers here. The links to the decision below were not working just now, however, so for immediate decision below (from the Federal Circuit) try here, and for a related earlier Fed Circuit decision dealing with the same issue try here.

2. Al Odah v. United States (GTMO detainee files cert. petition challenging the hearsay rules and burden-of-proof used in the post-Boumediene litigation)

For about a year and a half after the Supreme Court’s 2008 ruling in Boumediene v. Bush, district judges were left to their own devices in grappling with the Guantanamo habeas litigation. Beginning in January this year, some of their resulting decisions began to percolate up to the D.C. Circuit Court of Appeals, and by summer’s end we had some half-dozen Circuit opinions to consider. More district and circuit opinions are on the way, of course, but in the meantime the question arises whether the Supreme Court might take one of the existing 2010 Circuit decisions for review this term. In hopes that the answer will be yes, a GTMO detainee named Fawzi Khalid Abdullah Fahad Al Odah–who lost on the merits in his bid for habeas relief both at the district court (before Judge Kollar-Kotelly) and at the circuit (before Chief Judge Sentelle and Judges Rogers and Garland)–has just filed a cert. petition presenting two questions:

1. Whether the Federal Rules of Evidence and 28 U.S.C. 2246 limit the admissibility of hearsay in a habeas corpus case challenging indefinite imprisonment, potentially for life.

2. Whether a preponderance of the evidence standard, rather than a clear and convincing evidence standard, is sufficient under the Due Process Clause of the Constitution and 28 U.S.C. 2241 to support a ruling in favor of indefinite imprisonment, potentially for life.

One thing worth noting about the hearsay argument: it is not an argument about what the Constitution requires, but rather an argument about what the Federal Rules of Evidence and the federal habeas statute require. Thus Al Odah writes that “[e]ither Congress or this Court could change the Federal Rules of Evidence to accomodate the particular circumstances of a class of habeas cases such as Petitioner’s.” (pet. at 16) If the Supreme Court were to grant cert. on this question, it is not hard to imagine it having quite a galvanizing effect on Congress, generating interest in legislation in quarters that otherwise might have been prepared to live with the status quo. And of course that legislation would not likely be limited to the hearsay issue. Ironically, then, al Odah’s petition if successful could ultimately result in the adoption of rules either entrenching the status quo or perhaps making it still-more strict. One wonders, too, if some Justices when considering whether to grant cert. might actually bank on such a legislative reaction…. In any event, Lyle Denniston of SCOTUSblog has more coverage here.