For the second year in a row, Investigative Reporters and Editors solicited nominations from the public for one of the least coveted prizes in government: the Golden Padlock. The award recognizes “the most secretive publicly-funded agency or person in the United States,” and the U.S. Border Patrol last year took home the inaugural honor for stonewalling Freedom of Information Act requests related to agent-involved shootings along the border. While we’ve had our own FOIA battles with Customs & Border Protection in the past, it’s nothing compared to what we’ve encountered trying to shine light on how the NSA conducts mass surveillance.
This year, we formally and publicly nominate the Department of Justice’s National Security Division, or DOJ NSD, for the Golden Padlock.
For years, EFF has been trying to obtain opinions issued by the Foreign Intelligence Surveillance Court, or FISA court, that contain secret interpretations of the Constitution and federal surveillance laws. The government then relies on those secret interpretations to justify the NSA’s surveillance programs. We requested these opinions from DOJ NSD, which represents the government before the FISA court. After the government refused to produce the opinions, we sued—twice.
In each case, DOJ NSD claimed that none of the FISA court’s opinions—not a page, not a portion of a page, not a sentence, not a word—could be released without damaging national security. In some cases, DOJ NSD even refused to tell us how many pages the opinions contained.
The Snowden leaks changed things. In the government’s scramble to contain the damage from the leaks, they publicly disclosed many aspects of the programs the opinions described. That allowed us to successfully argue in court for the release of many of these opinions, which show multiple ways in which, by policy, error or outright misconduct, the rights of Americans were violated by NSA’s surveillance programs. But we also learned something else from these releases: DOJ NSD had misled EFF and the courts hearing our lawsuits when they claimed that nothing could be released from the opinions they were withholding.
There are numerous examples we can point to, but one is just so spectacularly egregious that it, alone, is worthy of special recognition. In one lawsuit, a DOJ NSD official swore that everything in the opinion was classified as “TOP SECRET” and disclosure of any part of the opinion would threaten “grave harm” to national security. Now that the FISA court’s opinion has been declassified, we now know that the super-sensitive information the DOJ was so aggressively defending included… the text of the Fourth Amendment to the Constitution.1
Other information the DOJ NSD contended was classified as TOP SECRET included sentences concerning illegal government action, like these:
- “The Court is exceptionally concerned about what appears to be a flagrant violation of its order in this matter[.]”
- “[T]he Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s orders. The Court no longer has such confidence.”
- “The Court now understands, however, that the NSA has acquired, is acquiring, and . . . will continue to acquire, tens of thousands of wholly domestic communications.”
No exemption to FOIA justified the withholding of this information at any time. Release of these sentences would not have revealed any sensitive intelligence information: it only would have informed the public that the government’s surveillance programs were in dire need of reform.
Even as the White House pledges greater transparency on issues surrounding mass surveillance, DOJ NSD continues to withhold key opinions that are necessary to an informed public debate. The agency’s obstinacy seems to be contrived to control public perception rather than protect any legitimate intelligence-gathering practices. EFF has gone back to court to force the DOJ to release more opinions and orders, but in the meantime, we’ll make our case to IRE’s Golden Padlock judges.
The Department of Justice’s National Security Division deserves a trophy for trampling transparency.