May 8, 2012 | By Trevor Timm

This Week in Transparency: Drones, Secret Surveillance, and Classifying the Wizard of Oz

Domestic and International Drone Secrecy

As EFF reported last week, the FAA finally released the names of the government agencies which have applied for and received authorization to fly drones in the US. Previously, the FAA had kept this information secret, and the agency only released it in response to EFF’s lawsuit under the Freedom of Information Act.

Unfortunately, the list did not include what types of drones were authorized to fly in U.S. airspace, what they were being used for, and what type of information they were collecting. The list may be incomplete as well. The FAA has promised to release more information soon, and EFF will publish that information as soon as it becomes available.

Meanwhile, concerning the secrecy surrounding the CIA’s drone program, ACLU’s Jameel Jaffer and Nathan Freed Wessler wrote an op-ed for the New York Times last week explaining how the CIA was abusing a doctrine in FOIA known as the “Glomar Response” which allows the government, in some situations, to refuse to confirm or deny a document or program exists. In the ACLU’s FOIA lawsuit over the CIA’s drone program, the government has, so far, refused to acknowledge that the program exists.

Of course, the drone program is highly publicized and has been acknowledged by many US officials outside of court. The administration’s arguments were further undercut this week when counterterrorism chief John Brennan formally acknowledged the drone program and gave the most detailed on-the-record description to date by an administration official. Brennan said that, “President Obama has instructed us to be more open with the American people about these efforts.” Let’s hope those instructions apply to the ACLU’s lawsuit, too.

The Justice Department has repeatedly asked for more time to respond to the lawsuit, despite the judge writing a few weeks ago, “If government officials can give speeches about this matter without creating security problems, any involved agencies can.”

Report on FISA

The Department of Justice posted its annual report to Congress on FISA surveillance and other national security activities conducted in 2011. Continuing its trend of more surveillance more often, DOJ applications to conduct electronic surveillance increased to 1,676 in 2011, up from 1,579 in 2010. Continuing a similar trend, the Foreign Intelligence Surveillance Court did not deny a single application to conduct surveillance, although the Court partially modified 30 orders.

As EPIC put it:

# of DOJ requests to the FISA court to eavesdrop on and/or physically search Americans/legal residents: 1,745

# of FISA court denials:  0

Perhaps most notably, the government’s use of Section 215 – the so-called “business records” provision of FISA – more than doubled in 2011. The DOJ filed 205 applications in 2011, up from 96 applications made in 2010. This is the same provision that Senators Wyden and Udall have warned us about: the Senators have said that when the American public finds out how the government has interpreted and is using the provision, the public will be “stunned” and “angry.” Given this, it is particularly concerning the government is relying on the provision much more frequently. Hopefully, EFF’s FOIA lawsuit against the DOJ for information on its interpretation of Section 215 will help shed light on the way the government is using this provision.

The report wasn’t all bad news, though: for the first time in recent years, the government’s use of National Security Letters (NSLs) actually decreased. An NSL is a secret, administrative subpoena that allows the government to compel the disclosure of calling records, banking information, or credit information about citizens and legal residents from the companies that hold the information. An NSL also gags the recipient from every disclosing they received it. The government issued 16,511 NSLs for information on 7,201 citizens or legal residents in 2011; in 2010, the government sent 24,287 requests for information on 14,212 citizens or legal residents. While the rest of the government’s application orders went up, it’s heartening to see the use of NSLs decline so dramatically. It’s a trend we hope will continue.     

Judge orders declassification, government appeals

The government announced they would officially appeal an important decision by a district court judge last month in which he ordered the declassification of “a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations” in response to a FOIA request. As EFF explained at the time, judges have rarely ordered classified documents released in the past, despite rampant overclassification by government agencies. The judge rightly called the classification in this situation not “logical.” If the decision is upheld, it would be an important victory for transparency.

Classifying the Wizard of Oz

Speaking of overclassification, a recently de-classified DC Circuit decision shows the sometimes ridiculous and arbitrary decisions US officials make when censoring government documents in the name of national security. As Marcy Wheeler reported, a decision by Judge Janice Rogers Brown denying a habeas corpus petition by a Guantanamo prisoner analogized the plaintiff’s case to the characters in The Wizard of Oz. The government then proceeded to censor the analogy from public view.

Here’s what the government originally believed would compromise national security if released:

Like Dorothy Gale upon awakening at home in Kansas after her fantastic journey to the Land of Oz, Latif’s current account of what transpired bears a striking resemblance to the familiar faces of his former narrative. See THE WIZARD OF OZ (MGM 1939). Just as the Gales’ farmhands were transformed by Dorothy’s imagination into the Scarecrow, Tin Man, and Cowardly Lion, it is at least plausible that Latif, when his liberty was at stake, transformed his jihadi recruiter into a charity worker, his Taliban commander into an imam, his comrades-in-arms into roommates, and his military training camp into a center for religious study.

This is yet another ridiculous example of how bloated and broken the nation’s secrecy system has become.


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