“Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017.” Secrecy and Society 2(1). https://scholarworks.sjsu.edu/secrecyandsociety/vol2/iss1/2, 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.
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.
One year ago, on June 5, 2013, Edward Snowden revealed that he had provided several reporters with access to documents he had taken from the National Security Agency. The subsequent carefully researched and thoughtfully written stories blew the lid off much of the secrecy that the National Security Agency, the Foreign Intelligence Surveillance Court, the Department of Justice, and the intelligence community had imposed on the communications surveillance in which our government had been engaging.
A month prior to the first disclosures, in response to the advocacy community’s requests that the opinions of the FISC be declassified,Robert Litt, general counsel for the Office of the Director of National Intelligence, the Justice Department and the FISA Court averred they could not and should not be declassified; that operational details were too completely interwoven with the legal discussions for it to be possible to separate them out. As a result of the disclosures, the intelligence community has been forced to declassify and release these documents and others.
The PATRIOT Act in 2001 gave permission for the FBI to seek a court order production of records or documents – tangible things -when there were reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism. Over the years, we learned from a disclosure made by Snowden,this provision was used to require companies like Verizon to “produce to the National Security Agency (NSA)…, and continue production on an ongoing daily basis thereafter…, unless otherwise ordered by the court, an electronic copy of: all call detail records or “telephony metadata” created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.
We learned through an administration White Paper (intended to calm the waters) that multiple FISC judges found that Section 215authorizes such bulk collection of metadata—not to gain access to specific items about specific persons on a case-by-case basis as the law clearly states, but, rather, because technology makes it useful to a “broad range of investigations of international terrorism”- which mayor may not themselves have been authorized by the FISC. Worse yet, we further learned from a declassified and released 85-page ruling by John Bates, then serving as chief judge on the FISC, that the court found that its approval of a government interpretation…was “premised on a flawed depiction” of how the program operated and “buttressed by repeated inaccurate statements in the government’s submissions”to the court.
The revelations have continued to this day. As a result, legislation that makes major changes to bulk collection of call records passed the House in 2014-although it remains possible that it, too, will be secretly interpreted to allow surveillance of millions of Americans. The director of the Office of the Director of National Intelligence has publicly accepted the need for greater transparency and taken some steps in that direction.
The bubble that has seemed to protect the intelligence community from President Obama’s openness initiatives may have sprung a leak. It is essential that, as the debate over the USA FREEDOM Act moves to the Senate, Congress ensures that this leak is not resealed, and that future disclosures should not require anyone to take the risks Snowden did. Instead, they should come from declassification of FISA court decisions, public reports of how many people’s communications are being stored in the NSA’s databases, and oversight hearings that are open to the press and public.
Context and Perspective
In order to understand the context for the “Snowden disclosures” and what they have meant for Executive Branch accountability, it is necessary to understand the course of efforts to rein in – or at least secure some (often minimal) oversight of – the U.S. Intelligence Community. These initiatives include the Foreign Intelligence Surveillance Act (FISA) and the amendments thereto, including, for the purposes of this article, the USA PATRIOT Act, the USA Freedom Act, and the FISA Amendments Act (FAA) and its reauthorizations. The whole story (that we know to date) is a complicated tale, which I try to encapsulate in this article.
This article is not written from an academic perspective; it is the struggle of an engaged (non-lawyer) advocate to understand how the protections of the Fourth Amendment were violated repeatedly – and outside of scrutiny for accountability – by the U.S. Intelligence Community, especially the White House, the Department of Justice, and the NSA, and the roles of the Congress and the Foreign Intelligence Surveillance Court (FISC) in those violations. The experience has been akin to putting together a moving puzzle without an image to use as a reference (or with only a completely different image – such as what the statutes say) and with some of the pieces missing, hidden, changing shapes, or somehow deliberately obscured.
An integral part of the story is the engagement of civil society – privacy, civil liberties, and open government organizations – in pushing back against the Executive Branch (including through Freedom of Information Act [FOIA] litigation) and in working with (and often also pushing back on) Congress. The output of civil society has been deeply informed and informative – and voluminous. For that reason, I have put as many as I could locate of the letters, statements to/testimony before congressional committees (ranging from 2002 to 2018), and commentaries (specifically on the 2017 reauthorization FISA Amendment) on a separate website. The links are above.
The dedicated reporters, all the individuals behind the scenes, and the editors of numerous newspapers and news sites have been – and continue to be – irreplaceable guides to the documents, the context, and the analysis of the programs as unveiled to the public. At the end, I will try to point to some initiatives to keep the leak in the Intelligence Community’s bubble of secrecy from being resealed. It was a difficult task in an administration committed (at least rhetorically) to transparency; it may well prove to be Sisyphean in the current administration. …
The basic organization of the article is:
1. A discussion of the text and the intent of the legislation indicated at the beginning of each section (including a section on the extra-legislative “President’s Surveillance Program” and one on Executive Order 12333); the Foreign Intelligence Surveillance Act; the USA PATRIOT Act; USA PATRIOT Act Improvement and Reauthorization Act of 2005; the President’s Surveillance Program; Section 702 of the 2008 Foreign Intelligence Surveillance Amendments Act; the USA FREEDOM Act; and the 2017 Foreign Surveillance Amendments Act Reauthorization;
2. What has been revealed as a result of the disclosures made by Edward Snowden;
3. How civil society and, where known, the courts and Congress used the revelations to enact changes in law and/or practice.
These topics are followed by discussions of the problems with congressional and FISA Court oversight.