Hundreds of documents on the government’s secret interpretation of a section of the PATRIOT Act and the NSA’s abuse of a massive database of Americans’ phone records have been released. President Barack Obama would like the public to believe this is part of the administration’s effort to be the “most transparent administration in history.” However, that is completely dishonest because the administration never wanted to release these documents.
In a post on the Tumblr for the Office of the Director for National Intelligence (ODNI), which was only launched in August after stories on documents from former NSA contractor and whistleblower Edward Snowden began to be published, DNI James Clapper states:
In June of this year, President Obama directed me to declassify and make public as much information as possible about certain sensitive intelligence collection programs undertaken under the authority of the Foreign Intelligence Surveillance Act (FISA) while being mindful of the need to protect national security. Consistent with this directive, today I authorized the declassification and public release of a number of documents pertaining to the Government’s collection of bulk telephony metadata under Section 501 of the FISA, as amended by Section 215 of the USA PATRIOT Act. These documents were properly classified, and their declassification is not done lightly. I have determined, however, that the harm to national security in these circumstances is outweighed by the public interest.
Release of these documents reflects the Executive Branch’s continued commitment to making information about this intelligence collection program publicly available when appropriate and consistent with the national security of the United States. Some information has been redacted because these documents include discussion of matters that continue to be properly classified for national security reasons and the harm to national security would be great if disclosed. These documents will be made available at the website of the Office of the Director of National Intelligence (www.dni.gov), and on the recently established public website dedicated to fostering greater public visibility into the intelligence activities of the Government (IContheRecord.tumblr.com).
Clapper did not make any independent determination that “public interest” in the documents “outweighed” any potential “harm to national security” that might occur from their release. And, while “direction” from Obama may have formed some of the reasoning behind what was released, ODNI decided to release documents because the Justice Department would be releasing documents pursuant to a July 19, 2013, order from the United States District Court for the Northern District of California. The court order was the result of a Freedom of Information Act (FOIA) lawsuit filed by the Electronic Frontier Foundation (EFF).
Trevor Timm of EFF wrote in a post containing a link to the released documents, “Up until the Snowden revelations started a couple months ago, the government was fighting tooth and nail to not only avoid releasing the content of the government’s secret interpretation of the Patriot Act, but even the number of pages that were involved. The government argued releasing a single word of today’s release would cause “serious and exceptionally grave damage to the national security of the United States.”
The American Civil Liberties Union (ACLU) also apparently played a role in getting the documents released. They were provided with fourteen documents they had asked for in their FOIA lawsuit seeking details on the “government’s use and interpretation of the Patriot Act’s Section 215.”
Alex Abdo, a staff attorney with the ACLU’s National Security Project, reacted, “These documents show that the NSA repeatedly violated court-imposed limits on its surveillance powers, and they confirm that the agency simply cannot be trusted with such sweeping authority
He added, “The abuses revealed in these documents are alarming but also predictable. These violations are the inevitable result of allowing the NSA to assemble a vast database of sensitive information about every American. The documents provide further evidence that secret and one-sided judicial review is not an adequate check on the NSA’s surveillance practices. The so-called ‘compliance incidents’ are troubling, but this is a program that should never have been authorized to begin with. The NSA should end the bulk collection of information about Americans.” (Note: As reported last week, the ACLU has filed a lawsuit against the bulk data collection program that currently enjoys the support of a wide spectrum of individuals and organizations, including the author of the PATRIOT Act, the National Rifle Association and former Church Committee members.)
Dishonesty by the Obama administration was predictable. After Citizens for Responsibility and Ethics in Washington (CREW) forced the government to release White House visitor logs, the administration tried to pass off this accomplishment during “Sunshine Week” as part of its commitment to unprecedented openness and transparency.
Despite what the administration would like the public to believe, it is not “dedicated to fostering greater public visibility into the intelligence activities of the Government”—unless someone like Snowden comes along and exposes how an intelligence activity is a clear abuse of authority and probably unconstitutional. Then, the administration is for “greater public visibility” so it can put out its version of what it believes to be the truth.
The reality is the Obama administration has specifically sought to exclude national security policies and/or intelligence activities from its public commitment to openness and transparency.
The Associated Press reported in March that, though the “Obama administration answered more requests from the public to see government records under the Freedom of Information Act last year,” more than ever it is now citing “legal exceptions to censor or withhold the material” in order to “protect national security and internal deliberations.” Agencies invoking a record number of national security exemptions included ODNI, the Pentagon, the CIA, the Department of Homeland Security and the Justice Department.
The FOIA lawsuits by the ACLU and EFF were an effort to challenge the Obama administration, which has presided over a growing body of secret law. In addition to previously refusing to release secret legal interpretations of a section of the PATRIOT Act, it has fought the release of information on the legal basis for placing a suspected terrorist on a “kill list.” It has refused to support regularly declassifying FISA court rulings at least in part or in some other form. The Justice Department has fought the release of two key memos from the Justice Deparmtent on when the government has the authority to use GPS tracking. And, when Obama issued “cybersecurity” policy directive that purportedly wrestled with when the US government can and cannot engage in cyber warfare, that remained classified until it was revealed by Snowden.
As I have previously argued, a culture of secrecy pervades intelligence agencies and government is filled with sycophantic bureaucrats indoctrinated to serve the national security state. Obama has no intention of challenging the secrecy culture in intelligence agencies, which creates a work environment that enables corruption. These agencies do not want whistleblowers talking any more than Obama wants people from his White House talking.
Obama and the heads of intelligence agencies do not want to have to address corruption because it interrupts the continuity of government or it undermines the operations of an ever-expanding Surveillance State. Therefore, the Obama administration must manage expectations on transparency and openness because they know there is only so much that can be permitted before the true extent of corruption in government is revealed. This charade by the Obama administration, which involves a Tumblr, is part of that managing of public expectations.
What is being revealed in the released documents is a result of the diligent work of legal teams at the ACLU and EFF. It is a result of the whistleblowing of Edward Snowden and the climate for reform and further transparency, which his disclosures have created. It is not because Obama believes the public deserves to know more about how the national security state operates, even though more information should be released regularly because there are clear abuses happening on a regular basis.