ON WEDNESDAY, the Obama administration released
documents on the National Security Agency’s (NSA) information-gathering. It should not have taken high-profile leaks to prod the government to reveal what it can, nor should it in the future.
It’s true that anything but total transparency will inevitably leave out details about the value and drawbacks of any program, offering Americans a distorted view of the government’s work. But it is good for Americans to know as much as they can about what the government is doing in their name. They should have as great an understanding as possible of how courts and the executive branch are interpreting and applying the law, if not a detailed account of the understandably secret sources and operations the NSA uses to gather information.
Take, for example, the bulk collection of phone metadata that leaker Edward Snowden revealed, which relies on a novel interpretation of the Patriot Act’s Section 215. Why did that interpretation need to remain secret once the Foreign Intelligence Surveillance Court accepted it? Even without details — such as which particular kinds of business records the government is after — that knowledge would have changed how people think about the Patriot Act, as it did following Mr. Snowden’s leaks. That change in thinking has spurred lawmakers to pay more attention and, in some cases, changed their minds. The public should have more access to significant interpretations of national security law, and the Obama administration can institutionalize that principle without any action from Congress.
The government could also, without legislation, report more on the scope of its information-gathering efforts. Google, Microsoft and other tech giants have asked for permission to disclose more about how many data requests they get from the government. If the Obama administration thinks allowing that would risk indicating which companies cooperate with the government, and therefore which ones terrorists should avoid using, it should beef up its own reporting. Releasing general, nationwide data on how many times the government goes looking for information under its various authorities would inform the public without tipping off terrorists. The FBI could give a sense of how many Americans were caught up in the information-gathering, since single orders can be very broad. In the case of the phone metadata program, it would be useful to include in aggregate figures not just how many times investigators begin searches but also how many accounts they scrutinize after they dip into their databases.
There are many other options to promote accountability. The inspectors general who watch the NSA and its interactions with the Foreign Intelligence Surveillance Court could produce regular, unclassified reports outlining the broad features of government anti-terror efforts and any misuse. The president’s Privacy and Civil Liberties Oversight Board could play a similar role. Since technology — and, therefore, data-gathering techniques — change rapidly, the Obama administration could also consider setting documents for presumptive declassification after a shorter window.
Classification policy has typically been the province of the executive branch. President Obama shouldn’t wait for Congress; he can institute stronger transparency requirements immediately.