There is government information that should stay secret: targeted terrorists, information on military vulnerabilities, confidential employee data. If the Snowden leaks have demonstrated one thing, however, it's that the U.S. government may have a flawed ability to distinguish between that crucial information and information it would simply prefer not to share. Sometimes, though, that instinctive secrecy is set aside in favor of winning a political point.
Take FISC. President Obama calls it "transparent," but the government's Foreign Intelligence Surveillance Court is so secret that the Electronic Frontier Foundation had trouble figuring out how to file a brief with it. There's a reason for this. FISC is, among other things, tasked with reviewing and approving the government's efforts to track and investigate those accused of being involved with terror activities. While the makeup of the court is public information, not much else is.
On June 5, The Guardian released an order from the court authorizing the FBI to seize phone call metadata from a division of Verizon. The paper didn't just report on the order, mind you — it had and posted a copy of the order itself, complete with the signature of FISC Judge Roger Vinson.
As The Daily Beast's Eli Lake reports today, that leak caused the FBI to scramble. Warrants such as the one that leaked are almost impossible to obtain.
The warrants reside on two computer systems affiliated with the Foreign Intelligence Surveillance Court and the National Security Division of the Department of Justice. Both systems are physically separated from other government-wide computer networks and employ sophisticated encryption technology, the officials said. Even lawmakers and staff lawyers on the House and Senate intelligence committees can only view the warrants in the presence of Justice Department attorneys, and are prohibited from taking notes on the documents.
It's not clear how The Guardian got the document. As The Daily Beast notes, the paper's Glenn Greenwald wouldn't confirm if Snowden was its only leak source when pressed earlier this month. Nor has Snowden taken credit for releasing the document. In fact, it's unlikely he was the source. The Daily Beast quotes a U.S. intelligence official: "This is not something, even if you are a contractor and you work for an intelligence agency like NSA, that you are going to be able to get a hold of." If someone has access to all of FISC's unredacted rulings, it could mean that the person has information on nearly every terror investigation currently underway. Figuring out how the document leaked, then, is an urgent priority and a cause for genuine alarm.
Then there's the other end of the spectrum: Reflexive attempts to let the public know even mundane information.
The political website Talking Points Memo wanted to report on how the Senate Intelligence Committee shared and reviewed the classified procedures used to track terror suspects. Note: The goal wasn't to report on the tools themselves, just the politics of how the Senate considers such things. To learn more about how that worked, it reached out to a former staffer for the committee, Vicki Divoll. Since Divoll has a non-disclosure agreement with her former employers, she shared the initial conversation with the Senate, which had always approved such conversations in the past.
Not this time. TPM's Brian Beutler explains what happened:
[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.
“The committee has reviewed your submission … and objected to any publication of the information contained therein,” she was told.
Two reasons were given. The first was that the information was out-of-date which, given that Divoll worked there a decade ago, is feasible. The second is that the information was "committee sensitive." In other words, how the committee conducts reviews of NSA surveillance in secret session is itself sensitive information. President Obama told Charlie Rose in an interview that aired late last night that he wants "set up and structure a national conversation," and administration officials said today that he would step up public talks about "protecting privacy in the digital age." But there is a secrecy problem holding back legitimate transparency.
Even before the recent leaks, the government's over-reliance on secrecy had been called into question. A week before the leaks, Senator Jeanne Shaheen of New Hampshire called on the president to reduce the number of documents held as classified — if only because it reduces the complexity and cost of managing them. Classification of documents is so rampant that one Washington Post columnist reported seeing an article from the New Yorker included within a set of reserved documents. There's the longstanding habit of the administration itself releasing classified information — to score political points or for movies, for example. And then there's a new oeuvre, championed by NSA chief Keith Alexander, who will again testify before Congress today, and embraced by the president: all of this secrecy is the best kind of transparency.
When the NSA first started using its surveillance tools, it was done without any judicial oversight. A critical point of debate during the 2008 vote to amend the Foreign Intelligence Surveillance Act focused on mandating that the NSA receive sanction before conducting its surveillance — from the top-secret FISC. In his interview with Rose, Obama pointed to that decision. From BuzzFeed's transcript:
Charlie Rose: But has FISA court turned down any request?
Barack Obama: The — because — the — first of all, Charlie, the number of requests are surprisingly small… number one. Number two, folks don’t go with a query unless they’ve got a pretty good suspicion.
Charlie Rose: Should this be transparent in some way?
Barack Obama: It is transparent. That’s why we set up the FISA court.
First of all, the court's role as overseer is subject to some interpretation. NPR reports that the oversight is very, very narrow.
"It's a very different role that the FISA court is playing now than it played five years ago," Jaffer says. "The FISA court is just reviewing at a very programmatic level: Is the government targeting only international communications, or is it impermissibly targeting domestic ones? That's the only question that the FISA court asks."
In short, the FISA court is now far more removed from the specifics of targeting people for surveillance.
But that's independent of the president's argument. He claims that the top secret court — a court so secret that it doesn't have an office, so secret that its hearings include lawyers from the government without any opposing opinions — is why the NSA surveillance process is transparent. How the Senate reviews the role of the NSA, however, is something that must be protected.
This logic, in part, is why we end up with whistleblowers.