President Barack Obama has taken a lot of criticism from both friend and foe for recent disclosures that the U.S. government monitors telephone and Internet traffic.
In a Monday interview with Charlie Rose, Obama defended the Foreign Intelligence Surveillance Court, which hears government requests for warrants related to national security investigations. He said he was comfortable with the programs because the FBI has to go to the FISA court with probable cause and ask for a warrant.
Rose: "But has FISA court turned down any request?"
Obama: "First of all, Charlie, the number of requests are surprisingly small, No. 1. No. 2, folks don't go with a query unless they've got a pretty good suspicion."
Rose: "Should this be transparent in some way?"
Obama: "It is transparent, that's why we set up the FISA court. . . . My concern has always been not that we shouldn't do intelligence gathering to prevent terrorism but rather are we setting up a system of checks and balances?"
Did Obama have justification for saying that the Foreign Intelligence Surveillance Court "is transparent?"
The court was established in 1978 to provide oversight of a system that many observers believed had been widely abused by prior administrations. National Security Agency requests for warrants must have certification from Justice Department officials that the target of surveillance is either a foreign power or the agent of a foreign power. These applications are heard by federal judges who serve on the court on a rotating basis. All hearings and decisions are conducted in secret. Public disclosure of the court's activities is sharply limited, consisting of an annual letter sent to Congress that provides statistics on applications for surveillance.
According to the most recent letter, about 98 percent of the 1,856 applications for surveillance and searches in 2012 were approved, with one withdrawn and 40 others modified. The government made 212 applications for business records. The government modified 200 of these applications, but none was denied.
The letter doesn't offer any details about these applications, only the raw numbers.
The White House argues that this system provides checks and balances that come as close to transparency as national security needs permit. Experts say there are good reasons for this secrecy.
"If we required that the public be permitted to take a peek at these classified proceedings, we'd be giving that information to foreign powers and terrorists as well, which would be lunacy," said Molly Bishop Shadel, a University of Virginia law professor who once worked for the Justice Department representing the United States before the surveillance court.
Still, is Obama justified in calling the kind of disclosure the court makes "transparency"? We asked a range of experts on secrecy and public access, and most agreed that Obama is wrong to take credit for any reasonable degree of "transparency" in the court's operations. While Congress has a degree of oversight over the court, that doesn't mean there's transparency — a word that we think the ordinary person assumes to mean a nontrivial amount of disclosure to the public and the press.
"On occasion, parts of the court's opinions will be declassified and released to the public, but this is the exception to the rule," said Nathan Sales, a law professor at George Mason University. "The FISA court certainly serves as an important check on the executive branch, but — usually — it's not accurate to call the court 'transparent.' "
Jim Harper, director of information policy studies at the libertarian Cato Institute, agreed. For one of his projects, Harper has assembled a list of four tenets of transparency. The court, he said, doesn't even meet the first and most important one of these: providing authoritative sourcing for information. "I don't know of any plausible meaning of 'transparent' that encompasses the 'oversight behind closed doors' concept."
Freedom of Information advocates seconded this view. "Checks and balances may be related, but they are not the same thing as 'transparency,' " said Kenneth F. Bunting, executive director of the National Freedom of Information Coalition. "A court system that has proceedings that are secret and makes secret rulings that are often based on secret interpretations of law cannot fit my definition of the word 'transparent.' "
We should note that Obama himself signed a memorandum about "transparency and open government." While this memorandum was intended to apply to nonclassified government information, the court doesn't come close to upholding the principles for transparency outlined in it.
"Transparency promotes accountability and provides information for citizens about what their government is doing . . ." Obama wrote. "My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use."
We don't doubt that there are good reasons for secrecy at the court, but if you're going to operate a mostly secret court, you don't get to crow about how "transparent" it is. We rate his claim Pants on Fire.