SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 53
June 10, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

SECRET SURVEILLANCE AND THE CRISIS OF LEGITIMACY

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."

FISA COURT SAYS IT CANNOT EASILY SUMMARIZE OPINIONS

The Foreign Intelligence Surveillance Court (FISC) told the Senate Intelligence Committee last March that there are "serious obstacles" that would prevent it from preparing summaries of Court opinions for declassification and public disclosure.

The Court was responding to a February 13, 2013 letter from Senators Dianne Feinstein, Jeff Merkley, Ron Wyden and Mark Udall. They asked the Court to consider "writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification." The proposal stemmed from an amendment to the FISA Amendments Act that was introduced by Sen. Merkley but not adopted. Sen. Feinstein offered to write a letter to the Court instead. ("Senators Ask Surveillance Court to Summarize Opinions, Secrecy News, February 27, 2013).

FISC Presiding Judge Reggie B. Walton replied in a March 27 letter that the preparation of unclassified (or declassifiable) summaries was not a simple matter.

First, he wrote, any summary would unavoidably involve the loss of legal nuance or technical complexity, creating a likelihood of misunderstanding or confusion. Second, the legal analysis in most opinions is "inextricably intertwined" with classified information, making an unclassified summary difficult or impossible. Third, the request would entail current judges summarizing the opinions of previous judges, which could be awkward or misleading.

Judge Walton did not completely dismiss the proposal. He said that he would encourage the members of the Court "to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case."

Still, this shifts the primary declassification burden back to the Justice Department and the intelligence community. If significant Court rulings are going to be declassified, executive branch agencies will have to be the ones to do it.

The Senate Intelligence Committee had refused to publicly release either its February letter or the FISC's March reply. Secrecy News had asked the FISC to release the correspondence and the Court was weighing the request, but the letters were first obtained and disclosed by the New York Times on June 8.

Senators Merkley, Lee, Leahy and Heller said they were preparing to introduce new legislation "To require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States."

EDWARD SNOWDEN, SOURCE OF NSA LEAKS, STEPS FORWARD

A former CIA employee and NSA contractor named Edward Snowden identified himself as the source of the the serial revelations of classified documents concerning U.S. intelligence surveillance activities that were disclosed last week.

"I have no intention of hiding who I am because I know I have done nothing wrong," he told The Guardia newspaper.

"I think that the public is owed an explanation of the motivations behind the people who make these [unauthorized] disclosures that are outside of the democratic model," he told interviewer Glenn Greenwald in Hong Kong, where he has evidently taken refuge.

"When you are subverting the power of government-- that's a fundamentally dangerous thing to democracy."

"I'm willing to go on the record to defend the authenticity [of these disclosures]. This is the truth. This is what's happening. You should decide whether we need to be doing this," he said of his disclosures.

In the history of unauthorized disclosures of classified information, a voluntary admission of having committed such disclosures is the exception, not the norm. And it confers a degree of dignity on the action. Yet it stops short of a full acceptance of responsibility. That would entail surrendering to authorities and accepting the legal consequences of "subverting the power of government" and carrying out "a fundamentally dangerous thing to democracy."

There are occasions when breaching restrictions on classified information may be necessary and appropriate, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a June 2009 sentencing hearing for Lawrence Franklin, who pleaded guilty to disclosing classified information in the "AIPAC" case. But in order to reconcile an unauthorized disclosure with the rule of law, he said, it must be done openly.

"I don't have a problem with people doing that [disclosing classified information to the press] if they are held accountable for it...," Judge Ellis said. "One might hope that, for example, someone might have the courage to do something that would break the law if it meant they're the savior of the country; but then one has to take the consequences, because the rule of law is so important."

"Simply because you believe that something that's going on that's classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn't justify it. Now, you may want to go ahead and do it, but you have to stand up and take the consequences," Judge Ellis said then.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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