It’s a limited step, analysts say, but it is an effort at transparency that even four months ago would have been unthinkable.
In the wake of disclosures since June 5 by former National Security Agency contractor Edward Snowden, the government finds itself on the defensive — having lost its iron grip on the taps that control the release of information it deems sensitive.
In an effort to respond to increasing public and congressional pressure for more transparency about surveillance programs and policies, the government, at President Obama’s direction, is releasing information that it had steadfastly argued it could not because of the danger to national security.
“Snowden’s disclosures are prompting the intelligence community to try to get out in front of disclosures that they can’t control with their own disclosures that they can,” said Kevin Bankston, a senior counsel at the Center for Democracy and Technology.
The limits of what the government thinks the public can know have shifted.
Take the Oct. 3, 2011, surveillance court opinion declassified and released last week. In making it public, Director of National Intelligence James R. Clapper Jr. determined “that the harm to national security in these circumstances is outweighed by the public interest.”
A mere five months ago, on April 1, the Justice Department asserted that to release any part of that opinion would “cause exceptionally grave damage to the national security of the United States.”
Yet last week, Clapper declassified and released the 85-page ruling, with some redactions. In it, Judge John D. Bates rebuked the government for misleading the court about the scope of its collection of Internet communications that included “tens of thousands” of Americans’ e-mails unlawfully collected.
“Whether they want to acknowledge that fact or not, the Snowden disclosures were the dispositive factor in the release of this material,” asserted David Sobel, senior counsel for the Electronic Frontier Foundation, which sued the government for the document’s release. “But we now know that much of the classified intelligence collection is so far-reaching and generalized, that revelation of its existence does not cause the same harm that disclosure of a particular target would.”
Clapper’s office said the release last week of the opinion and other formerly classified documents “reflect the Executive Branch’s continued commitment to making information” available about the government’s implementation of its most important surveillance program, known as Section 702 of the FISA Amendments Act, aimed at foreigners overseas.
Officials said that they were releasing the documents while “being mindful of the need to protect sensitive classified intelligence activities and national security.”
J. William Leonard, a former director of the Information Security Oversight Office and otherwise known as the government’s classification czar, said Clapper’s latest announcement failed “to come even close” to restoring credibility to the classification system.
As ISOO director, he also served as executive secretary to a government panel that ruled on public appeals of agencies’ denials of records disclosure requests. “Every single review that that panel did when I was there was a knock-down, drag-out fight, particularly with the intelligence community,” he said.
He recalled how one CIA member of the panel remarked just as he was retiring, “I couldn’t believe all the lines you guys bought about the damage that would occur.”
But former top counterintelligence official Joel Brenner said in a Lawfare blog post that some of Snowden’s disclosures have gone too far. The classified budget document that The Washington Post reported on Friday, for instance, will do harm, he said. This kind of data tells adversaries “about the structure and focus of our efforts including by implication the approximate number of agents we’re training,” he said. Releasing such information “is not in the public’s interest if the public is serious about wanting a robust foreign intelligence capability,” he said. “You cannot run intelligence by plebiscite.”
Under Clapper’s Thursday directive, the government will for the first time release annually the total number of Section 702 orders issued as well as the number of targets.
But the companies that receive these orders, such as Google and Microsoft, want to go further. Each firm wants to be able to specify how many surveillance orders it receives of what type, including for e-mail content, as well as target numbers. “We believe there is still too much secrecy around these requests and that more openness is needed,” a Google company statement said.
On Friday, negotiations with the government on this matter broke down, Microsoft General Counsel Brad Smith said in a blog. “We believe there remains a path forward that will share more information with the public while protecting national security,” he said.
Craig Timberg contributed to this article.