While many federal employees and the American public have been negatively affected by the US government shutdown, there is one group of people who can probably take solace: those who need to be held to account for the NSA surveillance scandal.
Before the shutdown, there were two allegedly “independent” investigations into NSA spying activities taking place—one through the Office of the Director of National Intelligence and one through the Privacy and Civil Liberties Oversight Board (PCLOB). We have heavily criticized these committees for their close ties to the White House and DNI, the same bodies in charge of the NSA, but certainly some investigation is better than nothing.
Now it seems both unpaid boards will be scaling back or shutting down operations even though they are not required to by the shutdown.
The DNI “review group,” has decided to shutdown operations because its underlying staff is furloughed. According to an unnamed source in Politico, the five-member panel was still set to meet this week until one of its members—former CIA deputy director Michael Morrell—declined to participate. (Politico needed a source to tell them when the review group was meeting because the DNI exempted the group from US transparency rules that state these types of groups must tell the public when they are meeting.)
Morrell curiously said his job in providing oversight is “a lot less important” than work being done by intelligence workers who are furloughed. Morrell explained, “I simply thought that it was inappropriate for our group to continue working while the vast majority of the men and women of the intelligence community are being forced to remain off the job.” Not off the job: the NSA employees conducting surveillance of US phone records, US internet traffic, and other internet activity of people who are considered 51% foreign.
While spying continues, the NSA’s Freedom of Information Act (FOIA) office has been completely shuttered. The office posted a message on its website saying that it would not be processing any FOIA requests during the shutdown. This is especially troubling given that the NSA’s FOIA caseload has increased a remarkable 1054% since the Edward Snowden stories started breaking in June. (By the way, if you’d like to FOIA the NSA, MuckRock has put together a handy list of tips to make sure your request does not get easily denied.)
The other “independent” group supposedly carrying out NSA oversight is the
Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, which has been conducting a review since July. Despite having “carry-over funding” which allows them to keep operating during the shutdown, they also postponed a major meeting last week because a number of witnesses were allegedly unable to appear “due to the federal government lapse in appropriations.”
Meanwhile, court cases intended to bring more transparency to the NSA have also ground to a halt. The secretive Foreign Intelligence Surveillance court had ordered the government to conduct a declassification review of all secret opinions dealing with the government’s secret interpretation of Section 215 of the Patriot Act, but this week the FISA court granted the government’s request to delay this declassification until after the shutdown ends.
A group of tech giants, including Google and Microsoft, petitioned the FISA court to allow them to publish general numbers of how many users are effected by FISA orders they receive. The government was able to delay this case as well, using the government shutdown as an excuse.
In addition, in both of EFF’s Freedom of Information Act lawsuits pertaining to the FISA court and NSA, the government was granted delays until the shutdown was over.
If it is essential that the spying continue despite the lack of appropriations, then it is equally essential that the question of whether the spying is lawful also go forward. The rule of law, and the protection of the civil liberties guaranteed by the Constitution, are every bit as essential to the preservation of American democracy as are the NSA’s spying activities.
Today, the judge denied the government’s request, saying simply “all deadlines shall remain as previously set.”
On balance, while transparency and accountability for the NSA has been halted during the government shutdown, the illegal and unconstitutional mass surveillance continues unimpeded. This is anathema to the Constitution. As the Ninth Circuit once explained:
“[T]he availability of constitutional rights does not vary with the rise and fall of account balances in the Treasury. Our basic liberties cannot be offered and withdrawn as ‘budget crunches’ come and go … Rather, our constitutional rights are fixed and immutable, subject to change only in the manner our forefathers established for the making of constitutional amendments.”
Despite the shutdown, EFF will continue to fight for transparency about the NSA programs and your rights to be free from unlawful spying.
Updated: October 10, 2013 to reflect the Privacy and Civil Liberties Oversight Board is an "independent executive agency."