David Corn

David Corn

Washington Bureau Chief

Corn has broken stories on presidents, politicians, and other Washington players. He's written for numerous publications and is a talk show regular. His best-selling books include Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War.

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Justice Dept. Loses a Round in Battle to Keep Surveillance Wrongdoing Secret

| Thu Jun. 13, 2013 11:57 AM EDT

Last week, I reported that in the midst of revelations about the National Security Agency's extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was fighting to keep secret a court opinion that determined that the government, on at least one occasion, had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

Last year, after Sen. Ron Wyden (D-Ore.) released a declassified statement noting that the Foreign Intelligence Surveillance Act (FISA) court had found that the US government had engaged in surveillance that had circumvented the law, the Electronic Frontier Foundation, a public-interest outfit that focuses on digital rights, submitted a Freedom of Information Act request to the Justice Department for any FISA court opinion or order that had reached such a conclusion. FISA court proceedings and opinions are top secret, and the Justice Department said, in essence, "get lost." EFF sued, and in the course of the proceedings, the Justice Department revealed that the FISA court in 2011 had indeed produced an 86-page opinion concluding a government surveillance program was not constitutionally kosher. But the department provided no details regarding the program that the opinion covered, and it contended the opinion could not be released because it was classified and the department itself did not have the authority to release a FISA court opinion, under that court's rules.

So EFF went to the FISA court last month and filed a motion that essentially asked the court to tell Justice that there was nothing in its rules that would prohibit a federal court from ordering the agency to release this opinion. And last week, the Justice Department responded, filing a motion arguing that the FISA court did not have jurisdiction to rule on the EFF motion. It also claimed that if the FISA court did rule in favor of EFF on this point, the court would create a precedent that could lead to the release of redacted opinions that would be "misleading to the public about the role of this Court." That is, the Justice Department was issuing a stark warning to the FISA court: Agree with EFF, and who knows what will happen. "A release involving the disclosure of some parts of a FISC opinion while concealing other parts creates a substantial risk of public misunderstanding or confusion regarding this Court's decision or reasoning," the department's motion stated.

The FISA court did not buy the agency's arguments. On Wednesday, it handed EFF a slam-dunk victory in this side battle, ruling, "The Court concludes that it has jurisdiction to adjudicate the EFF Motion and that the FISC Rules do not prohibit the Government's disclosure of the Opinion in the event it is ultimately determined by the District Court to be subject to disclosure under FOIA." So now the Justice Department cannot hide behind its claim that FISA court rules prevent it from releasing the opinion in response to a FOIA lawsuit.

EFF, though, has not yet reached the promised land. It still must beat the Justice Department in district court on the substance of the dispute: Can the government be forced to release a FISA court opinion—or portions of it—that declared a government surveillance program unconstitutional?

The FISA court, says David Sobel, a lawyer for EFF, "has made clear that there is nothing in its own rules that prohibits disclosure of the 2011 opinion we're seeking. So we go back to district court and continue our fight under FOIA, having removed DOJ's argument that it has no discretion to release FISC material." Pointing to this FISA court decision and a bill recently introduced in Congress that would require the declassification of certain FISA court opinion, Sobel says, "We might be on the verge of rethinking the degree of secrecy that surrounds all these activities." But he still has a tough fight ahead in this case, for the Justice Department has certainly demonstrated it will fiercely oppose disclosing an opinion revealing government surveillance gone wrong—even when the nation's most secret court has no objection.

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"Too Much Essential Information on Intelligence Surveillance Policy Has Been Withheld"

| Mon Jun. 10, 2013 10:44 AM EDT

One of the sharpest government secrecy analysts in Washington, DC, is Steven Aftergood, who publishes the indispensable Secrecy News Blog, a daily report on all things related to the dark matter of the US government. So it's no surprise that Aftergood would have a keen take on the latest National Security Agency leaks and the ensuing controversy. With his permission, I've lifted his analysis and presented it below:

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 [are] different [and] 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 [told] 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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