On Saturday, Director of National Intelligence James R. Clapper Jr. called the reports “reckless disclosures,” while also scoring the media for not giving “full context” to the “extent to which these programs are overseen by all three branches of government.”
But civil libertarians, some members of Congress and others criticize the oversight as hollow. Secrecy binds the traditional role of Congress to openly debate the programs, they say, while the special court established to deal with the government’s requests under the Foreign Intelligence Surveillance Act operates out of public view.
“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” said Stephen I. Vladeck, a law professor at American University’s Washington College of Law and an expert on national security law.
“The lack of transparency really impacts negatively the ability of Congress to conduct effective oversight,” said Amie Stepanovich of the Electronic Privacy Information Center. “Members of Congress are representatives of the people. But the public has been kept totally in the dark about these programs.”
Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said judicial oversight of the programs is undermined when the only court entrusted to make sure Americans’ rights are not compromised “meets in secret, allows only the government to appear before it and rarely publishes its decisions.”
Obama, a bipartisan group of congressional leaders and Clapper have pushed back hard against such assertions. Clapper declassified for release Saturday ways in which he said the programs are monitored, including “an unprecedented degree of accountability and transparency” to members of Congress through a variety of reports and briefings to congressional intelligence and judiciary committees.
But members of Congress on their own have no way of knowing whether violations of procedure have occurred, and any public discussion of the reports is curtailed.
That is why some members of Congress were cryptic in public comments about the surveillance programs
Sen. Ron Wyden (D-Ore.), for example, warned that Americans would be “stunned” if they learned how the government had interpreted Section 215 of the Patriot Act. He was probably referring to the dragnet surveillance of call records that was revealed by the Guardian, a British newspaper, on Wednesday. But because the program’s existence was classified, Wyden was barred from publicly disclosing what he learned as a member of the Senate Intelligence Committee.
“The Intelligence Committee knew, and members [of Congress] could go into the Intelligence Committee room and read the documents,” said Jennifer Hoelzer, a former Wyden staffer. “But they couldn’t bring staff, they couldn’t take notes, they couldn’t consult outside legal scholars.”
Moreover, Hoelzer said, there is little incentive for a member of Congress to object to something that the administration says is necessary to combat terrorism. “Nobody necessarily wants their fingerprints on anything that could ever go wrong,” she said. “They may be for or against it in theory, but they don’t want their name on the record.”
The FISA court has similarly been the subject of complaints.
The Foreign Intelligence Surveillance Court, created in 1978 in response to fears of abusive government spying, operates from a secure courtroom in the D.C. federal courthouse. It is composed of 11 federal judges chosen by the chief justice of the Supreme Court. Unlike a regular court, only the government appears before it when a judge considers programs such as the telephone records search revealed by the Guardian or the PRISM Internet surveillance program that paper and The Washington Post uncovered last week.
One judge at a time considers the government’s requests, and any denials can be appealed to a three-member panel. But that is rare. The court reported that in 2012, it approved each of the 1,789 eavesdropping requests it received from the Justice Department, save for one that was withdrawn. The court made modifications in 40 of the requests.
One of the court’s roles is to ensure the government’s procedures regarding foreign targets does not interfere with the Fourth Amendment rights of Americans who might be swept up in the surveillance. The court reported at least once that that had occurred.
But details about that and other opinions are unknown, because almost all of the court’s work is secret.
Judges who have served on the court bristle at the notion it is a rubber stamp for the government. They have described the work as intense and pressurized.
“It has opened my eyes to the level of hatred that exists in the world,” U.S. District Judge Reggie B. Walton, now the court’s chief judge, told The Post in 2009.
Congressional leaders and civil liberties groups have pressed the Obama administration and the FISA court to release redacted versions of opinions that show the underlying legal reasoning for surveillance under FISA. But officials have resisted, saying that redaction is difficult because classified information is so intertwined with legal analysis.
“Removing the classified information would leave a document that lacks any meaningful substance,” Robert S. Litt, general counsel in the Office of the Director of National Intelligence, said this year in a statement to The Post.
But Gregory T. Nojeim, senior counsel for the Center for Democracy and Technology, said that “failure to disclose the legal foundation for this surveillance creates distrust of intelligence agencies that will ultimately harm national security.”
Vladeck said that there have been proposals over the years for some sort of special advocate to serve in the FISA court. “Nongovernmental but security-cleared lawyers whose job is to argue against the government,” he said. “That, in my view, would be a very helpful start.”
This past week’s revelations have briefly united a civil libertarian collection of conservatives and liberals who are distrustful of too much government power.
The controversy also has created a political convergence among congressional leaders who have spent years fighting each other on other issues: House Speaker John A. Boehner (R-Ohio) and Senate Majority Leader Harry M. Reid (D-Nev.) lead the bipartisan defense of the aggressive surveillance techniques.
Timothy Edgar, a former privacy officer for Obama and President George W. Bush, faults both leaders for failing to be more transparent with the public about the standards for collection of data and the privacy protections in place.
The disclosure of the programs, for instance, has prompted the spirited defense from Clapper about oversight.
“These are very important privacy safeguards, which you wouldn’t be able to talk about in a program that hasn’t been confirmed,” said Edgar, who worked for the Office of the Director of National Intelligence.
Likewise, he said, the executive branch prefers dealing with members of Congress behind closed doors. “But the ideal is to have an actual public debate and not just substitute a briefing of Congress,” he said.
Stepanovich noted that Obama both criticized the disclosure of the programs and said it was “healthy for our democracy” to have an open discussion about how to balance privacy and security concerns.
“I’d like to know how this debate could take place if nobody knew about this program,” she said.