President Obama gave his most comprehensive defense yet of the NSA’s dragnet surveillance programs last night in an interview with PBS’ Charlie Rose, but his answers leave much to be desired.
Obama defended the programs by noting that the Foreign Intelligence Surveillance Act court has to approve all targeting. But when Rose pointed out that court approves over 99.99 percent of all requests from the government, and asked if it should be more open to the public, Obama replied, “It is transparent. That’s why we set up the FISA court.”
As the Electronic Frontier Foundation notes, “The FISA court, by its nature, is the opposite of transparent. In fact, it’s hard to imagine how the FISA court could be more secretive.”
Indeed, all of the court’s deliberations, documents, and decisions are classified. The order to Verizon that Ed Snowden leaked earlier this month is the very first FISA court order ever seen by the public. The warrants are among “the most highly classified documents inside the U.S. government,” as Eli Lake reported this morning on the FBI’s leak investigation in the court order.
The court room itself is enclosed in reinforced concrete, behind thick wood-and-metal doors that can only opened by biometric hand scanners. It is, as the Washington Post wrote in 2008, “the nation’s most secure courtroom for its most secretive court.”
In December, when the FISA Amendment Act was up for reauthorization, a group of senators pushed to include an amendment that would make things a bit more transparent. The amendment would require the government to either declassify some FISA court opinions, or at least provide unclassified summaries of those opinions. These wouldn’t be routine warrants, but significant path-breaking rulings that set the general parameters for government surveillance. Currently, we have no idea what the court says the government is and isn’t allowed to do. But the Obama administration opposed the amendment and the Senate rejected it, reauthorizing the surveillance bill without much debate.
In light of the Snowden leaks, senators have revived their effort to nudge the court towards transparency, but are likely to once again be met with White House opposition. Indeed, the Justice Department has already rejected the notion.
It’s worth also adding that in these court proceedings, there is no “other side” to oppose the administration’s requests or act as devil’s advocate against issuing a warrant or expanding surveillance capabilities. The judges only hear from the administration.
This is Obama’s idea of transparency? Perhaps he needs to take another look at the dictionary.