Federation of American Scientists
from the FAS Project on Government Secrecy
In December 1974, when a previous program of
secret government surveillance was revealed by Seymour Hersh in the New
York Times, the ensuing public uproar led directly to extensive
congressional investigations and the creation of new mechanisms of
oversight, including intelligence oversight committees in Congress and
an intelligence surveillance court.
The public uproar over the latest disclosures of secret domestic
surveillance by The Guardian and the Washington Post different cannot
produce a precisely analogous result, because the oversight mechanisms
intended to correct abuses already exist and indeed had signed off on
the surveillance activities. Those programs are “under very strict
supervision by all three branches of government,” President Obama
said Friday. In some sense, the system functioned as intended.
Nevertheless, all three branches of government performed badly in
this case, by misrepresenting the scope of official surveillance,
misgauging public concern and evading public accountability.
Official Dissembling and Misrepresentation
The executive branch has repeatedly issued misleading statements about its surveillance programs.
Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing
“Does the NSA collect any type of data at all on millions or hundreds of
millions of Americans?”
DNI Clapper
replied “No, sir.” He added “Not wittingly. There are cases where they could, inadvertently perhaps, collect — but not wittingly.”
That was not an accurate statement. Perhaps DNI Clapper misheard the
question or misunderstood it, or perhaps he judged that denial was the
proper course of action under the circumstances. But he did not correct
the record, and the false statement was left standing. There is a
price to pay in public credibility for such misrepresentation.
On other occasions, executive branch agencies promised declassification of information that they failed to deliver.
In 2010, the Justice Department and the Office of the Director of
National Intelligence undertook to declassify opinions of the Foreign
Intelligence Surveillance Court that contained “important rulings of
law.”
At her 2011 confirmation hearing to be DoJ National Security Division
director, Lisa Monaco Congress that “I will work to ensure that the
Department continues to work with the ODNI to make this important body
of law as accessible as possible….”
But no new Court opinions were ever declassified as a result of this
initiative. “As accessible as possible” turned out to mean “not
accessible at all.” (
Move to Declassify FISA Court Rulings Yields No Results, Secrecy News, May 29, 2012). Again, official words spoken in public were drained of meaning.
Suppressing Public Oversight
Congressional leaders have repeatedly blocked efforts to provide a
modicum of new disclosure and accountability to government surveillance
programs.
Some members of the House Judiciary Committee insisted last year that
“The public has a right to know, at least in general terms, how often
[this surveillance authority] is invoked, what kind of information the
government collects using this authority, and how the government limits
the impact of these programs on American citizens.”
But when an amendment to require unclassified public reporting on
these topics was offered by Rep. Bobby Scott (D-VA), it was defeated
10-19. For the majority in Congress, the public does not have a right
to know these things, not even in general terms. (
Congress Resists Efforts to Reduce Secrecy, Secrecy News, August 6, 2012)
Modest amendments to the FISA Amendments Act offered by Senators
Wyden, Udall and Merkley that were intended to increase public reporting
and awareness of the scale of surveillance were likewise blocked in the
Senate, which renewed the Act without changes. (
Intelligence Oversight Steps Back from Public Accountability,
Secrecy News, January 2, 2013). Had these public accountability
measures been incorporated into policy, a different future might have
unfolded.
Judicial Overreach
Of the three branches, the judicial branch seems least culpable here,
since the Foreign Intelligence Surveillance Court, which provides a
measure of judicial review of surveillance operations, can only operate
within the parameters sought by the executive branch and granted by
Congress.
But even here there are concerns about official excess, specifically with respect to
the Court order
issued by Judge Roger Vinson and disclosed by The Guardian which
directed Verizon Business Services to surrender all metadata records of
its customers’ telephone calls.
“In our view, the Foreign Intelligence Surveillance Court simply
lacks the legal authority to authorize this program of domestic
surveillance,”
wrote
Marc Rotenberg and colleagues at the Electronic Privacy Information
Center. They asked Congress to take steps to investigate and clarify the
situation.
“The Foreign Intelligence Surveillance Court ordered an American
telephone company to disclose to the NSA records of wholly domestic
communications. The FISC lacks the legal authority to grant this order,”
they argued.
Unchecked Secrecy
The common thread underlying all of these deviations from political
integrity and public consensus is unchecked official secrecy. Too much
essential information on intelligence surveillance policy has been
withheld from public access, thereby inhibiting public debate,
precluding informed consent, and inspiring growing cynicism.
The appropriate response must include significant new
declassification of surveillance policy and a thorough airing of the
issues at stake. Over the weekend, DNI Clapper made some
helpful gestures
in this direction. But more is needed, beginning with release of the
Administration’s legal interpretations of its surveillance authorities.
In theory, everyone involved has an interest in restoring the
credibility and effectiveness of an intelligence oversight system that
has not lived up to public expectations.
“Now that the fact of bulk collection has been declassified, we
believe that more information about the scale of the collection, and
specifically whether it involves the records of ‘millions of Americans’
should be declassified as well,”
said Senators Wyden and Udall
on Friday. “The American people must be given the opportunity to
evaluate the facts about this program and its broad scope for
themselves, so that this debate can begin in earnest.”
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