One Year Later: Snowden Disclosures’ Effect on Secret Laws| Commentary
One year ago, on June 5, 2013, Edward Snowden revealed that he had provided several reporters with access to documents he had taken from the National Security Agency. The subsequent carefully researched and thoughtfully written stories blew the lid off much of the secrecy that the National Security Agency, the Foreign Intelligence Surveillance Court, the Department of Justice, and the intelligence community had imposed on the communications surveillance in which our government had been engaging.
While we agree with President Barack Obama that the disclosures made by Snowden are not the optimal way to have started the discussion about the secret law that has allowed startling levels of surveillance of purely domestic communications and digital activities of United States citizens, we also believe that the discussion — and the changes that are tentatively unfolding — would not have occurred otherwise.
A month prior to the first disclosures, in response to the advocacy community’s requests that the opinions of the FISC be declassified, Robert Litt, general counsel for the Office of the Director of National Intelligence, the Justice Department and the FISA Court averred they could not and should not be declassified; that operational details were too completely interwoven with the legal discussions for it to be possible to separate them out. As a result of the disclosures, the intelligence community has been forced to declassify and release these documents and others.
The secret interpretations of law are the focus of the work of my organization — and many allies — in this area. The Patriot Act in 2001 gave permission for the FBI to seek a court order production of records or documents — tangible things — when there were reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism. Over the years, we learned from a disclosure made by Snowden, this provision was used to require companies like Verizon to “produce to the National Security Agency (NSA) . . . , and continue production on an ongoing daily basis thereafter . . . , unless otherwise ordered by the court, an electronic copy of: all call detail records or “telephony metadata” created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.(Emphasis added)
We learned through an administration White Paper (intended to calm the waters) that multiple FISC judges found that Section 215 authorizes such bulk collection of metadata — not to gain access to specific items about specific persons on a case-by-case basis as the law clearly states, but, rather, because technology makes it useful to a “broad range of investigations of international terrorism” — which may or may not themselves have been authorized by the FISC. Worse yet, we further learned from a declassified and released 85-page ruling by John Bates, then serving as chief judge on the FISC, that the court found that its approval of a government interpretation of section 215 of the Patriot Act was “premised on a flawed depiction” of how the program operated and “buttressed by repeated inaccurate statements in the government’s submissions” to the court.
The revelations have continued to this day. As a result, legislation that makes major changes to bulk collection of call records just passed the House — although it remains possible that it, too, will be secretly interpreted to allow surveillance of millions of Americans. The director of the Office of the Director of National Intelligence has publicly accepted the need for greater transparency and taken some steps in that direction. The bubble that has seemed to protect the intelligence community from President Obama’s openness initiatives may have sprung a leak. It is essential that, as the debate over the USA FREEDOM Act moves to the Senate, Congress ensures that this leak is not resealed, and that future disclosures should not require anyone to take the risks Snowden did. Instead, they should come from declassification of FISA court decisions, public reports of how many people’s communications are being stored in the NSA’s databases, and oversight hearings that are open to the press and public.
Patrice McDermott is executive director of OpenTheGovernment.org, and author of “Who Needs to Know? The State of Public Access to Federal Government Information.”