NSA Reforms: Will the Administration Take On Transparency?

On Friday, January 16th, President Obama will outline the administration’s reforms of the National Security Agency’s surveillance programs. As the Church Committee said in its 1976 report (and the President’s review group cited), “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.” We couldn’t agree more. Here are the transparency reforms the President should tackle in his speech:

Let the Law Loose: There are apparently several legal interpretations of the law by the OLC and intelligence communities that relate to the government’s surveillance programs. There are also several FISC opinions that significantly interpret the law. Until sufficient information is released about the legal rationale of the program, the public cannot have an informed public discussion. President Obama should to commit to making publicly available authoritative legal interpretations that are currently secret -– in order to begin to address domestic concerns that laws are being implemented in ways beyond what was thought allowable and to rebuild faith with our international partners.

Show Us the Scope : Just like secret laws, secret programs like this one are fundamentally at odds with our democracy. In order to restore trust in the government, and enable the public to have a meaningful voice in shaping public policies, we call on the President to provide the public with a description of the full scope of the surveillance programs, and the DOJ’s legal rationale for it.

The government should also publicly disclose on a regular basis general data about National Security Letters, section 215 orders, pen register and trap-and-trace orders, section 702 orders, and similar orders in programs whose existence is unclassified, unless the government makes a compelling demonstration that such disclosures would endanger the national security.

“Err on the Side of Transparency”: The President’s own review group outlined the balance clearly in its report: “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 recommend that the decision to keep secret from the American people programs of the magnitude of the section 215 bulk telephony meta-data program should be made only after careful deliberation at high levels of government and only with due consideration of and respect for the strong presumption of transparency.

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