May 23, 2012 – 10:53 p.m.

Keeping Agenda Under Wraps ‘Seems Like an Innovation’

In many ways, this week’s Senate Intelligence Committee markup was as discreet as the secretive panel’s usual markups: Senators met behind closed doors to consider legislation dealing with something they did not want to debate in open session, this time a bill extending an expiring 2008 surveillance law.

But there was an unusual twist. Prior to the markup, even the subject of the meeting was secret, labeled “committee sensitive,” meaning committee members were forbidden to discuss it, lest they face referral to the Ethics Committee.

Only afterward did the committee formally disclose which bill was considered during the May 22 markup.

Since at least 2007, a period covering three congresses, when the Intelligence Committee has placed a markup on its public calendar, it also has announced what legislation it would consider, or aides have provided that basic information if asked. Details were often sparse, but the basic question of which bill was being marked up was not kept quiet.

This week’s maneuver to prohibit disclosure of the committee’s agenda “seems like an innovation,” said Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy.

The subject matter of the markup was somewhat controversial, and Aftergood said that might have played a role in the decision to keep it under wraps. “It wouldn’t be surprising if the committee wanted to control the disclosure of its bill and to preempt partisans or lobbyists on any particular side of an issue,” he said.

Shortly before the markup began, however, Intelligence Chairwoman Dianne Feinstein, D-Calif., said she was unaware that the panel’s business had been labeled “committee sensitive.” She told a reporter the bill on the agenda was a draft measure to extend through mid-2017 the 2008 law (PL 110-261) allowing warrantless surveillance of foreign targets, including their communications with people in the United States.

The Intelligence Committee has broad latitude to keep its agenda a secret under the panel’s rule 9.3. An aide said the committee’s “default” position is to consider its work “committee sensitive,” meaning that a markup agenda can be given that status without being designated as such by Feinstein and the committee’s top-ranking Republican, Saxby Chambliss of Georgia.

The aide disputed any notion that the committee was trying to hide its intentions, noting that Feinstein has publicly and repeatedly stated her desire to act on a bill extending the 2008 law. There was, the aide said, “no conscious effort to avoid scrutiny.”

After the markup, committee leaders announced that the bill was approved on a 13-2 vote. But that did not free senators and aides to discuss the legislation or the debate behind closed doors.

“We’ve been told by Sen. Feinstein’s staff that under [the committee’s rule 9.3], members and staff are prohibited from discussing the markup or describing the contents of the bill until the official committee report is released, and that the fact that they’ve already put out a press release does not lift this prohibition,” said a spokesman for panel member Ron Wyden, D-Ore.