President Obama often says he "welcomes debate" over his national security policies. But, more often, his administration works through classification and the courts to keep secret the very information relevant for such a debate.
"It's not a very inspiring record, to say the least," said Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy. "With targeted killing, as in the case of domestic surveillance, declassification actually lagged well behind disclosure. The most basic facts--the U.S. killed [Anwar] al-Awlaki, the NSA gathers phone records of Americans unsuspected of any illegal activity, etc.--had to be leaked or publicly disclosed before the administration was willing to declassify them. This approach obviously tends to stifle and discourage debate, not promote it."
The Obama administration has come under harsh criticism in recent weeks for hiding the scope of domestic surveillance by the National Security Agency. Shortly after press reports revealing new information about the breadth of that surveillance, Obama told the public that "I welcome this debate. And I think it’s healthy for our democracy." But the "debate" that is happening now was spurred on not by the administration but by unauthorized leaks by a former NSA contractor.
Obama said something similar in his May speech at National Defense University shortly after declassifying the fact that four Americans had been killed in drone strikes, only one of them on purpose. That was done, Obama said, "to facilitate transparency and debate on this issue, and to dismiss some of the more outlandish claims," an oblique reference to Sen. Rand Paul's far-fetched hypothetical that lethal drones would be deployed within the United States.
"I think the president would have preferred to avoid the debate on NSA surveillance, and his remark to the contrary cannot be taken at face value," says Aftergood.
President Obama acknowledged the contradictions of a "debate" over policies that remain shrouded in secrecy during a lengthy interview with Charlie Rose that aired Monday:
"What I've said is--is that what is a legitimate critique--is that because these are classified programs, even though we have all these systems of checks and balances, Congress is overseeing it, federal courts are overseeing it-- despite all that, the public may not fully know. And that can make the public kind of nervous, right? Because they say, 'Well, Obama says it's OK, or Congress says it's OK. I don't know who this judge is. I'm nervous about it.'"
In practice, the president has nourished this contradiction, acknowledging the public interest but insisting on secrecy.
In the case of targeted killing, the Obama administration tried to block disclosure of the legal memos justifying the practice even to Congress, relenting only to clear the way for John Brennan's nomination to head the CIA. The summary of those legal memos was not publicly released by the administration, but obtained by NBC reporter Michael Isikoff. In seeking to keep the memos secret, the administration has rebuffed Freedom of Information Act lawsuits from The New York Times and the American Civil Liberties Union. It has vigorously pursued prosecutions of unauthorized leaks, while, like its predecessors, leaking selectively to the press when politically convenient.
The administration has amassed a similar record of obfuscation when it comes to surveillance. In February, the Supreme Court accepted the Obama administration's argument that the challengers to the 2008 FISA Amendments Act, which retroactively legalized the Bush administration's warrantless wiretapping program, did not have standing to challenge the law because they could not prove they had been spied on. They couldn't prove it because the program is secret. Rather than openly debate the law's constitutionality, the administration sought to continue to operate under its authority without court scrutiny. Following The Guardian's disclosure of a FISA order accepting an NSA request for the communications of millions of Verizon customers, the ACLU has filed a new lawsuit challenging the law.
The administration has also used the state secrets doctrine to block court scrutiny of Bush administration policies that Obama has condemned, like sending terror suspects to foreign allies where they may be tortured.
"We were hoping that the use of that privilege would be more limited under this administration. It has turned out not to be," said Jameel Jaffer, an attorney with the ACLU who helped litigate the challenge to the 2008 law legalizing Bush's wiretapping program. "This administration, like that last one, has essentially taken the position that national security policy should be beyond the reach of the courts."
The NSA has refused to disclose an estimate of how often Americans' communications have been swept up through their surveillance programs, and Congress has consistently refused to force them to do so. Last October, Sens. Ron Wyden of Oregon and Mark Udall of Colorado sent a letter to the agency's director, Gen. Keith Alexander, asking whether the NSA collected data on Americans. Alexander responded without answering the question, but in a public appearance at a think tank a year before, he had denied any information on Americans was "held."
Instead the administration has sought to defend its surveillance by allowing the NSA to discuss a handful of terrorist plots it has foiled through these programs. It has promised to release further details to bolster its argument that such government spying is necessary in the name of security. Administration officials declined to comment when asked by msnbc what further steps toward transparency it would take.
Wyden sent the same question to Director of National Intelligence James Clapper prior to a Senate hearing, and then asked Clapper publicly during the hearing. Clapper gave an unequivocal No. After leaked disclosures about NSA surveillance made it clear that what Clapper had said wasn't true, he told msnbc's Andrea Mitchell that he had "been too cute by half," with his answer. It's hard to have a "debate" when administration officials are "being cute" with Congress.
It's unclear why Obama's public remarks on transparency are so frequently at odds with his actions. "There are a lot of people in the national security world who believe that the interpretation of the law must remain classified, because that if the bad guys know how we are interpreting the law, if they understand how the law is applied, they'll understand our operations," says Vicki Divoll, a former CIA counsel and staffer for the Senate Intelligence Committee. Obama appears to be heeding their advice.
Transparency advocates hope that this time will be different, that promises of transparency will be followed up by real disclosure. Jaffer cited disclosure of secret Foreign Intelligence Surveillance Court decisions, releasing internal administration legal memos governing targeted killing and surveillance, and ending prosecution of leakers as possible steps the administration could take. Obama said in his interview Monday that "What I've asked the intelligence community to do is see how much of this we can declassify without further compromising the program, number one. And they are in that process of doing so now so that everything that I'm describing to you today, people, the public, newspapers, etc., can look at because frankly, if people are making judgments just based on these slides that have been leaked, they're not getting the complete story."
"If the current controversy over surveillance is handled well, it could serve as an opportunity to put intelligence policy on a more sound, ethical and consensual footing than it has been up to now," says Aftergood. "Perhaps we can expect or demand more declassification of current and past programs, more government witnesses testifying in open hearings, and in general more clarity about the parameters of US surveillance policy. We'll soon see."