WASHINGTON — The disclosure of vast government surveillance programs has renewed the debate about whether the kind of transparent oversight that Americans expect from their government can work if it might compromise efforts to keep them safe from terrorism.
President Barack Obama and his national security leaders have both asserted that vigorous oversight of government surveillance of phone calls and Internet data exists and denounced media reports that brought the programs to public attention.
On Saturday, Director of National Intelligence James Clapper called the reports “reckless disclosures,” while also scoring the media for not giving “full context” to the “extent to which these programs are overseen by all three branches of government.”
But civil libertarians, some members of Congress and others criticize the oversight as hollow. Secrecy binds the traditional role of Congress to openly debate the programs, they say, while the special court established to deal with the government’s requests under the Foreign Intelligence Surveillance Act operates out of public view.
“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” said Stephen Vladeck, a law professor at American University’s Washington College of Law and an expert on national security law.
“The lack of transparency really impacts negatively the ability of Congress to conduct effective oversight,” said Amie Stepanovich of the Electronic Privacy Information Center. “Members of Congress are representatives of the people. But the public has been kept totally in the dark about these programs.”
Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said judicial oversight of the programs is undermined when the only court entrusted to make sure Americans’ rights are not compromised “meets in secret, allows only the government to appear before it and rarely publishes its decisions.”
Obama, a bipartisan group of congressional leaders and Clapper have pushed back hard against such assertions. Clapper declassified for release Saturday ways in which he said the programs are monitored, including “an unprecedented degree of accountability and transparency” to members of Congress through a variety of reports and briefings to congressional intelligence and judiciary committees.
But members of Congress on their own have no way of knowing whether violations of procedure have occurred, and any public discussion of the reports is curtailed.
That is why some members of Congress were cryptic in public comments about the surveillance programs
Sen. Ron Wyden, D-Ore., for example, warned that Americans would be “stunned” if they learned how the government had interpreted Section 215 of the Patriot Act. He was likely referring to the dragnet surveillance of call records that was revealed by The Guardian, a British newspaper, on Wednesday. But because the program’s existence was classified, Wyden was barred from publicly disclosing what he learned as a member of the Senate Intelligence Committee.
Moreover, according to former Wyden staffer Jennifer Hoelzer, there is little incentive for a member of Congress to object to something that the administration says is necessary to combat terrorism.
“Nobody necessarily wants their fingerprints on anything that could ever go wrong,” she said. “They may be for or against it in theory, but they don’t want their name on the record.”
And the FISA court has similarly been the subject of complaints.
The Foreign Intelligence Surveillance Court, created in 1978 in response to fears of abusive government spying, operates from a secure courtroom in the District of Columbia federal courthouse. It is composed of 11 federal judges chosen by Chief Justice John Roberts Jr.
Unlike a regular court, only the government appears before it when a judge considers programs such as the telephone records search revealed by The Guardian or the PRISM Internet surveillance program that paper and The Washington Post uncovered last week.
One judge at a time considers the government’s requests, and any denials can be appealed to a three-member panel. But that is rare. The court reported that in 2012, it approved each of the 1,789 eavesdropping requests it received from the Justice Department, save for one that was withdrawn. The court made modifications in 40 of the requests.
One of the court’s roles is to ensure the government’s procedures regarding foreign targets does not interfere with the Fourth Amendment rights of Americans who might be swept up in the surveillance. The court reported at least once that had occurred.
But details about that and other opinions are unknown, because almost all of the court’s work is secret.
Last week’s revelations have briefly united a civil libertarian collection of conservatives and liberals who are distrustful of too much government power. But that does not mean anything will change.
“These are very important privacy safeguards, which you wouldn’t be able to talk about in a program that hasn’t been confirmed,” said Timothy Edgar, who worked for the Office of the Director of National Intelligence under Presidents Obama and Bush.
Likewise, he said, the executive branch prefers dealing with members of Congress behind closed doors.
“But the ideal is to have an actual public debate and not just substitute a briefing of Congress,” he said.
