Transparency in the Public Sector: The United States Experience
Marco Lunardelli
APPENDIX – ADDITIONAL INFORMATION
a) THE FOREIGN INTELLIGENCE SURVEILLANCE COURT
In response to congressional investigations that ascertained the widespread practice by the executive branch – especially by intelligence agencies – of engaging in secret surveillance of U.S. citizens, Congress passed the Foreign Intelligence Surveillance Act of 19781 [hereinafter – FISA]. The FISA laid down procedures that applied to the carrying out of electronic surveillance or physical searches within the United States for foreign intelligence purposes. Overall, the act was aimed at governing the methods whereby the executive branch may obtain intelligence information on agents spying for a foreign state or on individuals who were members of or related to international terrorist groups. The target of the surveillance activity was a foreign power or the agent of a foreign power, as defined in the act. Section 103(a) of the act established a court, the FISA Court [hereinafter – FISC], which was empowered – and still is – to decide on government applications, the purpose of which was to conduct surveillance and engage in foreign intelligence data collection. Under subsection (b), if an application was rejected, the Government was entitled to turn to a second-degree court composed of three judges – the FISA Court of Review. After the 9/11 attacks, the act was subjected to several amendments, the last of which were brought in by the FISA Amendments Act of 20082, adopted as a response to the revelation by the New York Times in 2005 of the NSA mass warrantless surveillance program conducted in the context of the war on terror. The act is codified at sections 1801 et seqq. of title 50, U.S. Code.
1Pub. L. 95-511, 92 Stat. 1783 (October 25, 1978). 2Pub. L. 110-261, 122 Stat. 2436 (July 10, 2008).
What is particularly interesting to my work is that the FISC activity, as well as that of the FISA Court of Review, features almost complete secrecy, as showed by the fact that FISC opinions are classified. As the FISC itself has observed, in the U.S. judicial system, openness of proceedings and records is the rule, and yet “the FISC operates primarily in secret, with public access [being] the exception.”3 Secrecy extends to material submitted to the FISC by the Government and even to appeals directed at the FISA Court of Review to challenge a FISC ruling on an application. Section 1803(c) empowers the Chief Justice of the United States to adopt, in consultation with the Attorney General and the Director of National Intelligence, measures aimed at securing the records of the FISC and of the FISA Court of Review. Subsection (g), however, allows the two courts to lay down their own rules of procedure, and the FISC exercised this ability in 20104. The FISC Rules of Procedure require compliance with Executive Order 13526, the executive order on classification of national security information, and with other executive branch regulations. Disclosure of FISC opinions is possible only in limited situations, and is substantially left to a voluntary choice made by judges. An opinion may be made available to anyone through its publication or just submitted to Congress. Furthermore, the executive branch is allowed to provide Congress with copies of FISC records without the prior consent of the Court, which however must be simultaneously informed of the submission.
b) RECENT BIBLIOGRAPHY ON THE FACA
- BENJAMIN CRAMER, The Power of Secrecy and the Secrecy of Power: FACA and the
National Energy Policy Development Group, 13 Comm. Law & Policy 183 (2008)
- MICHAEL MONGAN, FIXING FACA, 58 Stanford L. Rev. 895 (2005)
- SIDNEY SHAPIRO –RENA STEINZOR, The People’s Agent: Executive Branch Secrecy and
Accountability in an Age of Terrorism, 69 Law & Contemp. Problems 99 (2006)
3In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 488 (FISA Ct. 2007). 4U.S.FOREIGN INTELLIGENCE SURVEILLANCE COURT, Rules of Procedure (2010), available at http://www.uscourts.gov/uscourts/rules/FISC2010.pdf.
c) LIST OF FEDERAL AGENCIES SUBJECT TO THE THE GITSA
(from ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, Sourcebook of United States
Executive Agencies (2013), Table 17, p. 127)
ADF – U.S. African Development Foundation
AMTRAK – National Railroad Passenger Corporation BBG – Broadcasting Board of Governors
BGSEEP – B. Goldwater Scholarship & Excellence in Educ. Pr. CFTC – Commodity Futures Trading Commission
CNCS – Corporation for National Community Service CPB – Corporation for Public Broadcasting
CPSC – Consumer Product Safety Commission
CSHIB – Chemical Safety & Hazard Investigation Board DNFSB – Defense Nuclear Facilities Safety Board EAC – U.S. Election Assistance Commission
EEOC – Equal Employment Opportunity Commission EXIM – Export-Import Bank of the U.S.
FCA – Farm Credit Administration
FCC – Federal Communications Commission
FCSC – Foreign Claims Settlement Comm of the U.S. (Department of Justice) FDIC – Federal Deposit Insurance Corporation
FEC – Federal Election Commission FED – Federal Reserve Board
FERC – Federal Energy Regulatory Commission (Department of Energy) FHFA – Federal Housing Finance Agency
FLRA – Federal Labor Relations Authority FMC – Federal Maritime Commission
FMSHRC – Federal Mine Safety & Health Review Commission FTC – Federal Trade Commission
HSTSF – Harry S Truman Scholarship Foundation IAIA – Institute of American Indian Arts
IAF – Inter-American Foundation
IRSOB – Internal Revenue Service Oversight Board ( LSC – Legal Services Corporation
MKUSF – Morris K. Udall Scholarship Foundation MRC – Mississippi River Commission
MSPB – Merit Systems Protection Board NCD – National Council on Disability
NCUA – National Credit Union Administration NIBS – National Institute of Building Sciences NLRB – National Labor Relations Board NMB – National Mediation Board NRC – Nuclear Regulatory Commission NSF – National Science Foundation
NTSB – National Transportation Safety Board OPIC – Overseas Private Investment Corporation
OSHRC – Occupational Safety & Health Review Commission PCLOB – Privacy & Civil Liberties Oversight Board
PRC – Postal Regulatory Commission RRB – Railroad Retirement Board
SEC – Securities & Exchange Commission SIPC – Securities Investor Protection Corporation SJI – State Justice Institute
STB – Surface Transportation Board (Department of Transportation) TVA – Tennessee Valley Authority
USIP – U.S. Institute of Peace
USITC – U.S. International Trade Commission USPC – U.S. Parole Commission
USPS – U.S. Postal Service
