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Obama Administration, Despite Pledges, Still Resists Release of Secret Legal Opinions on Surveillance

President Barack Obama’s administration, especially Director of National Intelligence James Clapper, postured themselves as being committed to some newfound level of government transparency.

Over the past months, President Barack Obama’s administration, especially Director of National Intelligence James Clapper, have postured themselves as being committed to some newfound level of government transparency in the aftermath of NSA whistleblower Edward Snowden’s disclosures. The administration has significantly sought to downplay the fact that the Electronic Frontier Foundation (EFF) sued the government and a court ordered the release of key Foreign Intelligence Surveillance Court (FISC) opinions and other documents.

These are documents that were in the public interest, which the Obama administration opposed disclosing in the courts right up until Snowden’s first disclosures sent shockwaves through the world. And, despite whatever talking points the administration may repeat for publication by journalists, the Justice Department is still not “committed to a transparent and open government.” It does not truly make “every attempt to comply with Freedom of Information (FOIA) requests in a timely and efficient manner while ensuring that classified or sensitive information is not improperly released.”

Yesterday, EFF announced that they were filing another FOIA lawsuit against the Obama administration. It alleged in a complaint that the administration had “failed to expedite processing” of documents and continues to withhold “still-secret and significant surveillance decisions” issued by the secret surveillance court, FISC, the Foreign Intelligence Surveillance Court of Review and the United States Supreme Court.

It argued, “Since 2013, the country has engaged in the most substantial public debate on national security surveillance since the 1970s and the proceedings of the Church Committee.” This “debate continues today with multiple bills pending in both houses of Congress concerning national security surveillance reforms.”

Indeed, one of the more significant impacts of this debate spurred by Snowden’s whistleblowing was detailed in a story published by The Washington Post on May 1 indicating that major US technology companies, including Apple, Microsoft, Facebook and Google, were now increasingly defying authorities by notifying users of government data requests, which the government has demanded be kept secret.

In order to remain an active participant in this debate, EFF told the court it requested “certain specific opinions/orders of FISC be made public.” For example, what EFF would like to obtain is listed in a press release from the organization:

– The FISA court’s “Raw Take” order, which was revealed in documents released by Edward Snowden. According to the New York Times, this secret 2002 order weakened restrictions on sharing private data, allowing federal intelligence agencies to share unfiltered information about Americans.

– Two FISA court opinions from 2007 that first authorized, then later stopped, the NSA’s warrantless content collection program approved by President George W. Bush.

– The first FISA court opinion from 2008 that analyzed the legality of NSA surveillance under Section 702 of the FISA Amendments Act.

It noted that the organization has four outstanding FOIA requests of which the government has not responded or filled.

EFF Senior Counsel David Sobel declared, “With all the disclosures that have taken place over the past year, there’s no valid reason these opinions are still secret.” And, he suggested this isn’t only about protecting intelligence sources and methods. “The government’s refusal to provide these opinions looks more like an attempt to control public opinion about the NSA’s operations.”

Clapper’s own statement at the GEOINT conference in April on why information had to be declassified demonstrated that controlling public opinion was a chief concern. He said, “My major takeaway from this whole experience though has been the need for transparency.” Then, he proceeded to explain:

…[W]e made the decision to declassify more than 2000 pages of documents beginning last summer because the best way to deal with the misconceptions that had resulted from the leaks was to increase transparency. But the same transparency that reassures our citizens comes with a cost. It hurts our capabilities because our adversaries go to school on that very transparency. But when we boil it all down, we felt I felt we needed to pay that cost. Even if it meant losing some sources and methods, we need to engage in the kind of national conversation that free societies have – to correct misunderstandings that lead to false allegations in the media and to counter misperceptions that the IC work force is violating civil liberties. So we made the painful choice to declassify critical documents in the interest of being more transparent… [emphasis added]

The declassification—not fighting the court’s order to release information—centered upon the fact that they could release some documents that would help advance intelligence agency propaganda intended to convince Americans not to be too concerned about massive government surveillance.

Furthermore, while Obama did deliver a speech endorsing “greater transparency” in January, it remains unclear how future secret surveillance court opinions will be declassified in the future.

Obama announced he had issued and signed a “signals intelligence” directive that would strengthen internal executive branch oversight of “intelligence activities.” He said he had directed “the Director of National Intelligence, in consultation with the Attorney General, to annually review — for the purpose of declassification — any future opinions of the Court with broad privacy implications, and to report to me and Congress on these efforts.”

But what did Obama mean by opinions that have “broad privacy implications”? Who will decide what secret court opinions have “broad,” narrow or largely insignificant “privacy implications”? What would be considered “broad” and what would not be considered “broad”?

Still, more significantly, there is the fact that this secret surveillance court operates as a rubber stamp for the executive branch. Any proposed reform would enable the court to continue to argue and play a key role in surveillance policy. It would continue to decide constitutional issues, even though it is not a part of the traditional structure of the judicial branch. So, that means the executive branch would be able to continue to exercise a significant level of control over what the public knows about how this secret court is interpreting laws and the Constitution.

White House photo by Pete Souza

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."