The Problem of Our Surveillance Laws: Report Exposes Deeply Rooted Governmental Secrecy—Underscoring Why Obama Should Act Now

Kafka wrote in his parable The Problem of Our Laws, “It is an extremely painful thing to be ruled by laws that one does not know.”

By this standard, America has long been in pain. Secret law runs rampant in the United States, particularly when national security is concerned. It may be legitimate for the government to keep some information secret, like targets of investigations and specific intelligence strategies, but this should be a relatively short list. And it should not, except in the most extreme circumstance, extend to the law itself. A recent report by the Brennan Center for Justice’s Liza Goitein, however, exposes just how deep the problem of keeping even the law secret runs—with over-classification fostering constitutionally suspect legal reasoning and the rapid erosion of any meaningful check on governmental power.

The Brennan Center report also confirms something we’ve been arguing for years—it’s time for some transparency and accountability in our laws. With only 48 days left in Obama’s presidency, the call to shed some light on the law purportedly supporting the government’s secret surveillance programs is all the more urgent. Opening the blinds is a practical step for protecting the democratic principles this country was founded on—especially as the power to invoke secrecy and surveil Americans is posed to pass into new and untested hands. President Obama, the time is now.

The Report: The New Era of Secret Law

The Brennan Center report, entitled “The New Era of Secret Law,” defines “secret law” as “any law withheld from the public.” It outlines the dramatic post-9/11 expansion of the national security establishment’s web of secret court decisions, regulations, and policies. The expansion of secret law implicates all three branches of government: the legislative branch, with secret legislative histories and classified committee reports incorporated by reference into bills and therefore vested with the force of law; the executive branch, with its classified presidential directives and secret binding legal interpretations by the Justice Department’s Office of Legal Counsel (OLC); and the judicial branch, with the United States Foreign Intelligence Surveillance Court (FISC or FISA Court) issuing dozens of secret “ground-breaking” legal interpretations approving unprecedented mass surveillance programs—most of which opinions remain undisclosed to this day.

The report highlights that, while over-classification long been a problem, the national security establishment’s intense, purposeful secrecy around the law post-9/11 is unprecedented in American history—representing a “significant departure from the commitment to openness and transparency that marked this country’s first two centuries[.]” And it’s a problem because secret law “interferes with the normal process by which law and legal interpretations are corrected or improved.” It is impossible for citizens to challenge laws they are not aware of. Secrecy permits government actors “to develop unfair laws and to apply them [in] an unfair manner, safe in the knowledge that there will be no repercussions.”

And it’s true: as a result of pervasive, purposeful secrecy, the government’s interpretation of our surveillance laws has grown increasingly distorted and unfair over time—now relied upon to justify mass spying programs that sweep up communications records of millions of innocent people.

What the American Public Deserves to Know—Now

President Obama has the opportunity to shed some light on secret surveillance law. EFF recently joined other civil liberties organizations in urging him to seize that opportunity—by taking a few concrete and important steps before he leaves office to release information about the relationship between the law and government spying. These are steps that will empower the American public and ensure that our government continues to function as the democracy our founding fathers intended.

Specifically, Obama should declassify and release to the public all of the following before January 20, 2017, redacting only information truly necessary to protect national security:

• All FISA Court opinions with a significant construction or interpretation of law, regardless of whether they were issued before the passage of the USA FREEDOM Act in 2015. As the Brennan Center report notes, there is “a backlog of significant FISA Court opinions that have yet to be declassified and released.” These opinions are critical for understanding how the government’s legal justification for mass spying has evolved over time—and where it has gone wrong.

• Office of Legal Counsel opinions related to national security and civil liberties. As noted above, OLC opinions contain binding legal interpretation, just as court decisions; that’s why the OLC is sometimes referred to as having a “quasi-judicial” function. But per the Brennan Center’s analysis of records provided pursuant to the Freedom of Information Act (FOIA), at least 74 OLC opinions, memoranda, or letters from 2002 to 2009 on some of the most important legal issues arising after 9/11—“including intelligence gathering and the detention and interrogation of suspected terrorists”—remain classified and thus unavailable for public scrutiny. The Brennan Center also reports that between 1998 and 2003, at least one out of every five OLC opinions was classified. In some cases, OLC reports are not just withheld from the public; they’re also withheld from Congress, including even the very Congressional committees with jurisdiction over the subject matter of the opinions. This practice—“unknown before the Reagan administration” and “rare before 9/11,” according to the report—not only strips Congress of its oversight function, but also prevents Congress from stepping in when the executive branch misinterprets a law or decides that a law doesn’t bind it.

• Information about the scope of government surveillance of U.S. persons under Section 702 of the 2008 FISA Amendments Act (FAA). The U.S. government relies upon Section 702 as the statutory basis for its PRISM and Upstream mass surveillance programs. These programs sweep up data on hundreds of millions of people who have no connection to terrorist investigations, including countless Americans. Indeed, a hearing last May confirmed that Congress has no idea how many Americans have been impacted by Section 702. That’s not reassuring. This information should be disclosed to the public—and to Congress—since the proportionality of the government’s activities is an important part of assessing their legality.

• Office of Inspector General reports related to national security and civil liberties. Various federal agencies have an Office of the Inspector General (OIG), designed to serve in an oversight capacity and reporting to both Congress and the agency head. These offices also issue reports relating to national security and civil liberties issues, but not all of these reports have been disclosed or released to the public. The public needs to know how federal agencies are interpreting and applying the law.

These are just a few of the discrete, practical actions we’ve specifically called for in our joint letter to the President. Obama should also brief both Congress and the Privacy and Civil Liberties Oversight Board (PCLOB) to help inform their oversight. He should direct a government-wide review of whether and how agencies are disposing of information about U.S. persons collected through surveillance. And he should release guidance on how the government considers constitutional concerns surrounding “parallel construction,” the law enforcement practice of laundering evidence to avoid disclosing the true source, such as a warrantless search conducted as part of a secret surveillance program.

Obama, It’s Time

Although some sunlight has been shed on the government’s telephone and Internet mass surveillance programs—thanks to the leaks of whistleblowers, including Edward Snowden, the work of investigative journalists, and statements by public officials—we are still largely in the dark regarding not only how these programs impact innocent people, but also about the constitutionally suspect legal analysis the government has relied upon to justify its warrantless collection of our communications records.

This pervasive secrecy is undermining our status as a truly democratic nation. As the Brennan Center notes, “[j]ust as secret law is not truly law, a democracy that relies on it is not truly a democracy.” Obama has the opportunity to stand up for democratic principles by shedding light on how these programs operate—and he should take it.