EXCLUSIVE: Clapper Memo Reveals Rationale Behind NSA Review Group Secrecy
Jason Leopold
October 22, 2013
When President Obama announced last August that he would take steps to try and win back public confidence in the wake of a series of troubling disclosures by The Guardian and Washington Post about the National Security Agency’s surveillance practices he promised the public that his administration would be “transparent."
In addition to declassifying some documents pertaining to the legal rationale governing the NSA’s collection of certain communications, Obama said he was also “forming a high-level group of outside experts to review our entire intelligence and communications technologies.”
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The NSA review group (formally known as the Director of National Intelligence Review Group on Intelligence and Communications Technologies) would essentially operate as an advisory committee. Obama said the panel would ponder how it could “maintain the trust of the people” and “how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used …”
By acting as an advisory committee the panel of so-called “independent” experts would have been subject to the Federal Advisory Committee Act (FACA), a law enacted in 1972  “to ensure that advice by the various advisory committees formed over the years is objective and accessible to the public.”
But Director of National Intelligence James Clapper apparently had no intention of allowing the much maligned review group to conduct its work in a transparent manner.
In an unclassified memo “for the record” I obtained under the Freedom of Information Act (FOIA), Clapper exempted the review panel from provisions of FACA because of national security concerns.
This memorandum documents my earlier determination to exempt the Review Group from the Federal Advisory Committee Act for the following national security reasons:
Meetings of the Review Group will discuss matters related to national security policy, plans, and strategy that are properly classified
Disclosure of minutes, notes, or other records may reveal information that reasonably could be expected to cause damage to national security.
But classified information was not discussed at any of the review group’s meetings held over the past month, according to statements attendees gave to the AP and The Guardian.
Sascha Meinrath, director of the Open Technology Institute and vice president at the New America Foundation, told the AP the review group’s closed meetings "leave the public out of the loop."
Clapper has come under fire for lying to Congress about the scope of the NSA’s surveillance capabilities. The White House’s decision to allow his office to “facilitate” the review group’s work in light of his "erroneous statements" to Congress was sharply criticized by the media and prominent bloggers.
Placing the review group under the purview of ODNI may have been a calculated move and an attempt to maintain a level of secrecy surrounding the panel’s work, specifically, an effort to bypass provisions under FACA.
In 2010, Congress slipped into the Intelligence Authorization Act a little known amendment that authorized ODNI to issue FACA exemptions whenever the agency determined “that for reasons of national security such advisory committee cannot comply with the requirements of this Act.”
In testimony before the Senate Select Committee on Intelligence in June of that year, Robert Litt, general counsel for ODNI, said by allowing ODNI to bypass FACA it will enable Clapper “to take full advantage of the collective experience and wisdom of subject-matter experts outside the government as he grapples with intelligence policy decisions.”
ODNI is the only government agency authorized to issue an exemption waiving compliance with FACA. CIA and the Federal Reserve have blanket waivers and the National Academies of Science operates under rules that only applies to them but it does not have a blanket waiver.
Curious Timing
The timing of Clapper’s memo is curious. He signed it on September 19, three days prior to an Associated Press report that asserted the review group “has effectively been operating as an arm of the Office of the Director of National Intelligence, which oversees the NSA and all other U.S. spy efforts.”
The AP story also added that the review panel confirmed to the news organization that Clapper exempted it from FACA “because of the highly classified nature of their review."
Clapper’s memo, however, provides additional insight into his decision. After I read the AP report, I filed a FOIA with ODNI and asked the agency for a copy of the written determination that said the review group is not subject to FACA.
Presumably, the AP was working on its report and queried ODNI around the same time Clapper signed the memo. It’s unknown whether the AP’s inquiry is what ultimately lead Clapper to issue the memo exempting the review group from the provisions of FACA. It's odd that he signed the memo more than a month after he disseminated an announcement that said his office was formally establishing the review group.
The secrecy surrounding the review group's work is not a surprise. The Obama administration is worse than its predecessor when it comes to transparency.
The review panel was supposed to deliver an interim report to Obama this month. It’s final report is due at the end of the year. But don't count on seeing it anytime soon. It has to first be approved by the White House before a decision is made as to whether it will be shared publicly.