“Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017.” Secrecy and Society 2(1)., Patrice McDermott


Before June 2013, civil society and much of Congress were largely in the dark about the extent of the surveillance activities of the National Security Agency and the circumlocutions of statute undertaken by the White House and the Department of Justice. After the releases by Edward Snowden to specific journalists, the mendacity of Intelligence Community lawyers and leaders, the evasions of the law and manipulation of the FISA Court by the White House working with the Justice Department, and the scope of the violations of the Fourth Amendment protections of U.S. Persons (USPs) became increasingly apparent. This article reviews the changes that were initiated in the Executive Branch (and to a lesser extent in the Legislative Branch), the role civil society played1 in pushing and utilizing greater transparency, and what the changes mean for government accountability to the public.

1Warrantless Surveillance – Coalition Letters;

Warrantless Surveillance – Organizational Testimony;

Section 702 Reauthorization Commentaries

Excerpted text from introductory material:

Do you think a program of this magnitude gathering information involving a large number of people involved with telephone companies could be indefinitely kept secret from the American people?” [Representative Robert] Goodlatte asked. “Well,” ODNI general counsel Robert S. Litt said with a slight smile, “we tried.”

Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support.

The two epigraphs above present the critical question at the heart of this paper: Why would or should we trust the Intelligence Community? As I lay out in the following pages, the White House, the U.S. Department of Justice, and National Security Agency (NSA) have repeatedly lied to (at a minimum, misdirected) the Foreign Intelligence Surveillance Court (FISC), Congress, and not least the American public. In one of a number of op-eds and articles posted on the one-year anniversary of the Snowden revelation, I wrote about the possible puncturing of the protective bubble around the intelligence agencies and what needs to be done to keep it from resealing. I return to these issues at the end of this article.

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