Secrecy around Government Surveillance Looms Large in Obama Administration’s Final Year

As the US begins to look toward 2017, many openness and civil liberties advocates are concerned that time is running out for this administration to shed light on the government’s surveillance authority and capabilities before the next President takes office.

Last week, the Brennan Center for Justice released a report on Executive Order 12333, detailing what we know and what is still secret about the threat to US persons and non-US persons from surveillance programs operating under EO 12333. The report, Overseas Surveillance in an Interconnected World, outlines the ways in which communications from US persons can be swept up in the NSA’s search for foreign intelligence – the part of American surveillance that is often ignored in domestic debates.

The Brennan Center report discusses in detail the stark lack of transparency surrounding surveillance programs under Executive Order 12333, issued by President Ronald Reagan in 1981 and subsequently amended by later administrations. Although some of the regulations governing EO 12333 programs are public, even those may have been revised without public knowledge. There is, moreover, scarce information available on congressional oversight of these programs, leaving the public in the dark on their effectiveness and compliance with the law.

Definitional and informational deficits in the Executive Order’s public portions make accountability even more problematic. Terms such as “collection” are vague and vary across agencies, and we don’t know what privacy protections are in place to prevent violations of civil and human rights when the NSA shares intelligence with other agencies and foreign governments.

This last concern is particularly troubling given recent reports that the Obama Administration is preparing to expand sharing of NSA data with other American intelligence agencies. With time winding down on President Obama’s last term in office, continued secrecy threatens to pave the way for the further erosion of civil liberties under the next administration. Without greater knowledge of how the law governs surveillance programs, how the agencies interpret policy guidelines, and what Congress is doing to ensure meaningful oversight on behalf of the public, it is impossible for the American public to hold government officials accountable for potential current and future abuses of power.

Some advocates voiced these apprehensions at a March 17 Capitol Hill panel co-hosted by the Brennan Center and Just Security, questioning the director of the NSA’s Office of Civil Liberties and Privacy, Rebecca Richards, on the agency’s lack of transparency. Richards acknowledged that foreign intelligence-gathering programs can sweep up Americans’ communications, but stated that the NSA is not allowed to target US persons under EO 12333. When the audience and panelist Neema Singh Guliani (ACLU) stressed that this policy has not been included in the guidance that has been made public, Richards insisted that NSA agents can’t search for US persons in EO 12333 data. The discrepancy exemplifies the need for greater disclosure of the regulations and policies governing overseas surveillance.

One member of the audience questioned Richards on the lack of meaningful disclosures despite Director of National Intelligence James Clapper’s declared intent to move toward greater transparency, including his October release of a transparency plan for the intelligence community. Richards responded that the NSA is committed to transparency, as well as continuing to collaborate with civil society.

Read civil society’s recommendations for surveillance transparency measures here.


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