June 11, 2013

Domestic Surveillance Scandal Underscores Need for Transparency

By Daniel Schuman

Classified documents on deskThe rapidly unfolding domestic surveillance scandal underscores the need for greater transparency, particularly with respect to the executive branch’s interpretation and application of federal law and Congress’ ability to engage in oversight.

CREW supports legislative efforts to make the opinions and orders of the secretive Foreign Intelligence Surveillance Act (FISA) Court available to the public to the maximum extent possible and in a timely fashion, with unclassified summaries offered when declassification proves impossible.

Additionally, Congress should direct that the authoritative opinions issued by the Justice Department’s Office of Legal Counsel (OLC) be made available to the public prospectively and retrospectively. Nearly 40% of these opinions have been withheld over the last decade-and-a-half, creating a large corpus of secret law that is effectively unreviewable. When the OLC cannot release entire opinions, it should release lightly redacted versions, giving great weight to the public’s right to know. At a minimum, titles and summaries for all opinions should be available online.

In advance of the congressional action we have called for, the White House should work to make this information available to the public.

Moreover, Congress should strengthen its executive branch oversight. House and Senate rules regarding access to and public release of classified information should be reviewed with an eye towards the legislative branch’s constitutional role. Limitations on staff access to classified material should be evaluated in the light of the importance of members of Congress having sufficient support to do their jobs.

The executive branch’s actions have severely damaged its credibility. Congress should empanel a far-ranging commission to investigate and publicly report on the growth and behavior of the national security state since the start of the Internet era. A similar effort in the late 1970s, known as the Church Committee, revealed important and damning evidence of government involvement in the overthrow of foreign governments, assassination of foreign leaders, violations of basic constitutional rights, and inappropriate involvement in domestic political affairs. Notably, the FISA Court was created in response to recommendations of the Church Committee.

We do not yet know the extent and nature of the government’s activities. Even while some matters may need to be kept secret, it is clear the public’s need to know has not been given sufficient weight. It’s time to clear the air. Only with real transparency can we have the discussion about national security President Obama now claims to welcome.


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