In a surprising move, congressional and White House negotiators agreed on intelligence reform legislation that created no major victories for the public interest but could have been much worse for open government and environmental protection near the nation’s borders. The final bill still keeps secret the total intelligence budget, which the Washington Post estimated to be approximately $40 billion. The 9/11 Commission had pushed Congress to catalyze stronger public oversight of the government’s intelligence activities by disclosing the total annual budget. Past history of secrecy and new authorities granted to federal agencies under law passed since 9/11 raise additional concern about the new powers granted the new Director of National Intelligence (DNI). Under the law creating the Department of Homeland Security, DHS is doing two things that significantly expand secrecy in ways not seen in recent times. First, the department is writing procedures for safeguarding both classified and unclassified information. Second, it is asking its 180,000 employees to sign nondisclosure agreements that could eventually extend to scientists and public health workers outside government that have contracts with DHS. (Daniel Ellsberg was criminally charged with unauthorized disclosure of classified information when he disclosed the Pentagon Papers to the Washington Post, but the case was thrown out.) These moves added to advocates’ concern when Congress proposed that the DNI would have authority over the handling of classified and unclassified information without strong congressional oversight. Journalism groups argued the bill empowered the DNI to criminalize leaks of classified material, which would hurt news reporting. The legislation did advance, albeit in a baby-step fashion, congressional oversight in a significant way. The bill sets up a board appointed jointly by the president and Congress to resolve disputes when Congress accuses federal agencies of keeping too many secrets. Specifically, the Public Interest Declassification Board, which supercedes an existing board created by Congress that never got off the ground, could hear appeals of federal agency classification decisions. The re-vamped board can initiate reviews of agency decisions and must respond to requests from Congress to do so. While the Board clearly has the authority to take up appeals from historians or other members of the public, the legislation did not specifically mandate that the Board respond to public requests in a manner similar to those from Congress. Some members, including Sens. Trent Lott (R-MI) and Ron Wyden (D-OR), were angered by the increasing cost of secrecy and intelligence agencies’ efforts to black out key sections of a Senate committee report on pre-war Iraq intelligence. Those close to the negotiations over the legislation expect Congress will exercise greater oversight on the legislation’s impact on government secrecy and the free flow of information in society. One of the Republican holdouts who needed to be appeased, according to most news accounts, was Rep. Duncan Hunter (R-CA). Hunter and Rep. David Dreier (R-CA) both led the way in the conference committee on efforts to sneak in an amendment that would have empowered the Secretary of Homeland Security to waive any federal law in the course of completing barriers and roadways along the nation’s southern border. Current law allows the DHS Secretary to waive the Endangered Species Act and National Environmental Policy Act, if necessary, to complete securing the border, but that provision has never been needed. As originally proposed in the House by Rep. Doug Ose (R-CA), the amendment would have expanded the waiver authority to a more exhaustive list of environmental laws. When Dreier and Hunter pushed this amendment in conference, they expanded the proposed waiver power to include all federal law. A number of public interest groups, including a coalition of environmental groups and Citizens for Sensible Safeguards, opposed the amendment. Most accounts suggest that Hunter was appeased by House leadership with the offer of a major effort to address immigration and border control in the next Congress. Although there is no specific evidence yet that this amendment was discussed, it does seem likely that a border security bill in the upcoming 109th Congress will include some form of amendment to place the DHS secretary above the law. Note: This version of the above article correctly describes who may request that the Public Interest Declassification Board review agency decisions to classify documents. The original version incorrectly asserted that only the chairs of certain congressional committees could make requests.