"The statute under which we operate provides that the president must request the board undertake such a review before it can proceed," wrote L. Britt Snider, chairman of the Public Interest Declassification Board to Sen. Ron Wyden, D-Ore.
Government transparency advocates say that if the statute is interpreted that way, it makes the board, in the words of Steven Aftergood, of the Federation of American Scientists, "a White House puppet."
Aftergood told United Press International that "The board needs the capacity for independent action, otherwise it might as well not exist."
The letter from Snider, a copy of which was obtained by UPI, says it is "an interim response" to a request from Wyden and a bi-partisan group of colleagues for the board to review two reports the Senate Select Committee on Intelligence produced, which assessed U.S. intelligence about Iraq prior to the 2003 invasion, in the light of what has been learned since.
"We believe that portions of these two reports remain unnecessarily classified," wrote committee members Kit Bond, R-Mo., Dianne Feinstein, D-Calif., Mike DeWine, R-Ohio, Russ Feingold, D-Wisc., Orrin Hatch R-Utah, and Vice Chairman Jay Rockefeller, D-W.V., in a letter last month.
They requested that the board review the reports to see if they were over-classified -- the first test of the board's role as a watchdog for secrecy policy.
"I think the intelligence community used their black highlighters excessively as they reviewed these reports," Wyden said at the time. "I am particularly concerned it appears that information may have been classified to shield individuals from accountability."
The Public Interest Declassification Board was established in law in 2000, following a 1997 recommendation from a commission headed by the late Sen. Daniel Patrick Moynihan. The board was set up, according to statute, "To promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and ... activities."
But the administration did not appoint any members until September 2004, and no funds were appropriated for it until last year.
A little-noticed provision of the 2004 intelligence overhaul law enacted by Congress changed the board's charter, adding two seemingly contradictory provisions.
One states that the board shall "review and make recommendations to the president ... with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records."
But another says "If requested by the president, the board shall review ... certain records ... the declassification of which has been the subject of (a) specific congressional request described" in the first section.
"I think the Bush administration had a hand in the drafting," said Aftergood, "and they are very jealous of presidential prerogatives in this area."
Calling the dual, and dueling, provisions "an ambiguity in the way the law was drafted," Aftergood said they effectively made the board toothless. "If it needs White House permission to challenge over-classification," he said, "the scope of its activities is going to be severely constrained."
The board says it is stuck in the middle of a tussle about its authorities between lawmakers and the White House.
"The White House position is they have to request (any review like that of the senate committee report)," Snider told UPI. "The senators believe they can ask independently. ... We're kind of stuck in the middle."
Snider said the board was "waiting for guidance from the White House" about how to proceed.
The board's Executive Secretary J. William Leonard, added that the board was keen to get things right the first time around. "There's a desire that (this first request) is processed in accordance with the statute, because it will be establishing a precedent," he told UPI.
He said the board was keen to move ahead with the review. "We are kind of feeling our way around" the new process, he said.
Leonard said an additional problem is that the statute specifies congressional requests must come from the committee of jurisdiction. Although intelligence committee Chairman Sen. Pat Roberts, R-Kan., has said on the Senate floor that he supports the review, he has yet to formally request it.
"We are waiting for a request from the committee itself," said Leonard. He and Snider said that under the law, the White House would not consider requests except from the committee.
An intelligence committee staffer authorized to speak to the media told UPI only that Roberts stood by his statement supporting the board's review and that committee staff "continues to work with the Board on this matter."
The staffer said Roberts was "prepared to weigh in with the board as necessary to see that this review takes place," but offered no explanation as to why he had no done so yet.
Leonard said the board was confident that they would get a formal request. "We have been told that there is no problem ... that the board will get a request," he said.