It is beyond time for the Obama administration to be open with the public about the legal justifications and the full scope of the government’s domestic spying. The recently leaked documents about the mass collection of telephone metadata and the National Security Agency’s ability to tap into data of major tech companies should prompt the administration to declassify more information about the programs and lead to an informed debate about our public policies.
Since 2001, my organization has charted the exponential growth of the universe of classified national security information. Despite the fact that we have known for several decades that the United States over-classifies information, and, as cited by the 9/11 Commission, that over-classification has contributed to major intelligence failures, the sheer number of documents classified by the federal government has continued to increase. The State Secrets privilege, which was intended to protect national security information from disclosure in the course of a trial, has morphed into a way to completely cut off access to the court system. The privilege has been used almost as many times in the past 13 years as it was invoked during the preceding 24-year period
Obama campaigned on a platform of openness and accountability. On his first day in office, he issued a memorandum dedicating himself and his administration to creating “unprecedented levels of openness in government.” It is becoming increasingly clear, however, that his commitment to openness waivers under the specter of claims of “national security.”
While the government has an absolute obligation to protect properly classified information and to ensure that information that would clearly cause harm to our national security is not incautiously released, the extreme secrecy surrounding our national security programs and the intelligence community’s actions are antithetical to our democracy. The public must, at the very least, have a shared understanding of the laws of the land and be able to meaningfully influence our public policies.
The massive and apparently indiscriminate scope of the NSA’s data collections is perhaps not as shocking as it should be. When a government program operates in a bubble of secrecy, there is limited oversight and accountability, which can lead to extreme abuses of power. Other recent scandals, including the unconscionable intrusion into telephone records of reporters and editors for the Associated Press and the naming of a reporter as a co-conspirator during an investigation into a leak of classified national security investigation, also show how abuses of authority occur when the government automatically accords more weight to claims of “national security” than to other democratic values.
In the early days of his administration, Obama seemed to embrace this belief, writing in his memo on transparency and open government that “Transparency promotes accountability and provides information for citizens about what their government is doing.” More recently, however, the Obama administration has repeatedly denied the public access to the Department of Justice’s legal interpretations and other documents that significantly interpret laws.
The leaked documents posted by The Guardian and the Washington Post have undoubtedly improved public understanding of the scope of the NSA’s data collections, and have led Director of National Intelligence (DNI) James Clapper to declassify more information about the programs. This is a first step, but not nearly enough. There are still significant questions about these particular programs, and about how the government is interpreting other laws. These unanswered questions leave a black cloud over President Obama’s term, one that began with so much promise for government transparency.
Mr. President, the public cannot be left in the dark any longer.
McDermott, is executive director of the coalition, OpenTheGovernment.org, and author of Who Needs to Know? The State of Public Access to Federal Government Information and numerous articles. She is recipient of the James Madison Award from the American Library Association in recognition of her work to champion, protect, and promote public access to government information and the public’s right to know.