Roughly 1,786 days ago, the Department of Justice's Inspector General started an investigation into the FBI's use of Section 215, the provision the government uses to collect the phone records of most Americans. Sometime last June, perhaps 330 days ago, the Inspector General finished the report. Three days before USA Freedom Act failed a cloture vote in the Senate last November, Inspector General Michael Horowitz revealed where the report, which had been four years in the making, had gone to.
It was stuck in declassification review.
All this delay for a report we know directly addresses issues affected by the USA Freedom Act. We know the earlier IG investigation -- and therefore this one -- covered the phone dragnet, because a version of the predecessor report, newly declassified in response to a Freedom of Information Act request by the New York Times, included a 5-page appendix on it. We know the new report included a review of how the FBI retained and disseminated reports collected under the provision, because its predecessor found FBI failed to comply with the law on that front and any follow-up would report on whether FBI had finally started to comply with amendments to the law Congress passed in 2006.
And yet, the Intelligence Community seemed to have no interest in declassifying the report in time to affect the debate.
The delay is all the more inexcusable given one point of USAF and the assumption the Executive Branch had negotiated it in good faith. Part of USAF mandated new Inspector General reports and additional transparency. The biggest improvement on the status quo in the bill, aside from getting the government out of the business of collecting every Americans' phone records, was those transparency provisions. And yet the Intelligence Community had succeeded in keeping a long-awaited report on that precise program from most of the Members of Congress by not declassifying it in the 5 months between the time it was completed and the time the Senate voted on it.
In February, around 8 months after the report was finished, the DOJ's IG issued a classified (but still partially redacted) report so Members on the oversight committees, at least, could read the IG's report on the provision they were actively debating. (And had been debating, for a year!) There's even some hint -- in the form of a new requirement that the government tell the oversight committees, in secret, when the government uses Section 215 to conduct bulky programs -- that the bill has changed to reflect new information, perhaps information from the report.
But, as the IG said in February, "the OIG has not been informed of when that review will be completed."
So here we are, bearing down on a hard deadline in a few weeks to reauthorize Section 215, and the FBI still claims to be conducting a declassification review for a report first initiated 5 years ago and completed 11 months ago. This report would be entering kindergarten if it were human, and yet the FBI wants to keep it in a drawer, away from those who need to read it.
Congress was not formally notified the report was available; at least one member of Congress who asked to see it got no response. The public certainly hasn't seen it.
Nevertheless, we're proceeding with this legislation, pretending that the transparency provisions in the bill will be treated in good faith, when by all appearances the IC is preventing the public (and, it appears, at least some members of Congress) from benefitting from past transparency efforts.
In addition to new IG Reports and secret new reporting to Congress, this version of USA Freedom Act requires the government to declassify, or at least summarize, any significant decisions from the FISA Court. We've seen what the IC does with important decisions it still relies on, though. For example, we'll probably get something like the summary the Director of National Intelligence offered when refusing to release an August 2008 opinion in response to ACLU and EFF's Freedom of Information Act requests last year: The "Opinion addresses the NSA's use of a specific intelligence method in the conduct of queries (term "searches") of telephony metadata or call detail records obtained pursuant to the FISC's orders under" Section 215, that summary explained. In that case, we can probably guess, based on the timing of other submissions the government made to the court days before the opinion, that the court reviewed how the NSA matches multiple identifiers to put together a profile of one target (what it calls "correlating" identifiers). But the government wouldn't even admit that information, even though it is unclassified.
That's not the worst part of the government's cynical suggestion it will treat new transparency provisions in good faith. For two years, Director of National Intelligence James Clapper's office has released a top line number for how many people it targeted under Section 702, the provision better known as PRISM. The NSA targeted 89,138 people under Section 702 in 2013, it estimates, and 92,707 last year. The number provides a very vague number of the scale of the government's content dragnet (and by association, the number of Americans who might be sucked in because they talked to one of those 93,000 targets).
Negotiators eliminated the provision requiring the government to provide that number.
We're going backwards.
It is true that USAF permits providers to give more clarity about how many spying requests the government makes of them. It is true that the bill at least requires FISC declassification (though that might look like that summary of a 7 year old opinion, probably on correlations, the government still relies on).
But it's time to assess how serious the government is about the transparency provisions it is negotiating. Because the evidence suggests, on that front, they're negotiating in bad faith.