Privacy Board Makes a Strong Case for Transparency, Against Secret Law

Please see OpenTheGovernment.org's statement on the PCLOB Report here

We applaud the strong transparency recommendations from the PCLOB in its January 23, 2014 Report.  The Board took an important and clearly stated stand for the public’s right to know the legal interpretations and authorities that inform domestic data collection programs by the intelligence community.  Early on, the board notes the critical balancing act the intelligence community must perform in its duties to protect the public without keeping it in the dark: “both openness and secrecy are vital to our survival, and we must strive to develop and implement intelligence programs in ways that serve both values.”

The government’s responsibility to inform democratic, public debate is the undercurrent of nearly all PCLOB’s transparency recommendations. As the board discusses Congress’ role in transparency surround Section 215, it concludes:

With full respect for the pressure confronting Congress and the executive branch in the years after 9/11 and up until this very day, we do not believe that the process surrounding the application of Section 215 to bulk collection comported with the kind of public debate that best serves the development of policy affecting the rights of Americans.

In this vein, the PCLOB addresses the balance between the public’s right to know and the necessary secrecy in intelligence programs by recommending greater disclosure of the authorities for and general operations of the surveillance programs under Section 215. The board notes, and praises, the recent practice of FISC judges to begin “drafting their opinions with the expectation that they may be declassified and released in redacted form,” by separating sensitive facts from legal analyses. They also recommend, though, that the government also “…perform a declassification review of decisions, orders and opinions by the FISC and FISCR that have not yet been released to the public and that involve novel interpretations of FISA or other significant questions of law, technology or compliance.”  

The board’s 11th Recommendation, which “urges the government to begin developing principles and criteria for transparency,” serves to extend the transparency triggered by the Snowden revelations to other existing and to future intelligence programs. Although authors praise the government’s disclosures (via IC on the Record) following Snowden’s unauthorized leaks, they warn that the reactionary disclosure should not provide “object lessons” for disclosure in the future. Because, in this case “any harm to national security was already done with Snowden’s illegal disclosures,” and the subsequent official releases were intended to address misperceptions caused by “fragmentary leaks.” Any additional damage cause by the release of explanatory documents would likely be minimal.  Instead, the PCLOB draws guidance from current internal practices that show the intelligence policy and practice can be prepared and disclosed in an unclassified form without compromising operations. Examples include the unclassified Attorney General Guidelines on FBI investigations and the bureau’s largely public investigative procedure manual.

The PCLOB’s recommendations on transparency are an important recognition that public disclosure is crucially necessary in the creation, authorization, and implementation of intelligence programs. We urge the President to begin a process that requires greater transparency for both current and future surveillance and intelligence community programs.  We call on Congress to build transparency into any legislation it considers for the activities of the intelligence community. 

 

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