Knowledge is the Key to Control: The White House Surveillance Panel on the Need for Greater Transparency

The Final Report of the Review Group on Intelligence and Communications Technologies was released this past Wednesday (December 18). The Review Group was established by President Obama to make a report and recommendations “to protect our national security and advance our foreign policy while also respecting our longstanding commitment to privacy and civil liberties, recognizing our need to maintain the public trust (including the trust of our friends and allies abroad), and reducing the risk of unauthorized disclosures.”  The final report is much stronger than many in the privacy and civil liberties community (and apparently the Administration) expected, and has good language about the need to reduce secrecy in the arena of national security: "A central goal of our recommendations is to increase transparency and to decrease unnecessary secrecy, in order to enhance both accountability and public trust."

In its chapter on Principles, the Group discusses at length the 1976 report of the Church Committee – not only to provide the context for the Foreign Intelligence Surveillance Act (FISA) and the FISA Court, but also to draw on the learnings of that Committee. Key among those, from our perspective, is this:  “The American public… should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality. Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.“ (Church Committee Report, Book II, page 292.)  The Group repeatedly emphasizes the need for transparency for self-governance, and they stress that a key principle of our form of government, rule of law, requires a high degree of transparency.

Throughout the report there are calls for disclosures of information and greater transparency, including this: “At the very least, we should always be prepared to question claims that secrecy is necessary. That conclusion needs to be demonstrated rather than merely assumed. When it is possible to promote transparency without appreciably sacrificing important competing interests, we should err on the side of transparency.” We are very pleased to see these calls.  Each is accompanied, though, by a critical caveat: “without appreciably sacrificing important competing interests”; or more frequently, “unless the government makes a compelling demonstration that such disclosures would endanger the national security.”  What is left unclear is who will decide what weight is appropriately given to competing interests, and to whom the government will make “a compelling demonstration.”  You will forgive us if we don’t trust the intelligence community to make these decisions on their own.

The President now has one strong set of recommendations on his desk (and the report of the Privacy and Civil Liberties Oversight Board) is expected in January.  We urge the President and the Congress to heed not only the calls for greater protections of privacy and civil liberties but also for greater transparency and accountability to the American public.

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