OpenTheGovernment.org (OTG) has released the 2013 Secrecy Report, its 9th annual review and analysis of indicators of secrecy in the federal government. With the public and lawmakers alike still reeling from the revelations about the scope of National Security Agency’s (NSA) data collection programs, this year’s report casts new doubt on the accuracy and the meaningfulness of the government’s statistics about surveillance.
In a note prefacing the report, OTG’s Executive Director Patrice McDermott writes: “Our distrust of the government’s reported numbers is focused in four areas: demands for records under Section 215 of the USA PATRIOT Act; the applications made to the Foreign Intelligence Surveillance Court (FISC) under Section 702 of the FISA Amendments Act of 2012; the failure of congressional oversight; and our new understandings of the interactions between the FISC and the intelligence community, and the expanded role of the Court.” As a result, previously included numbers on the use of National Security Letters (NSLs) and the government’s applications to the FISC are not included in this year’s report. Instead, the discussion focuses on the “misdirection in which our government has engaged” and “secret interpretations of law,” which are “as disturbing as the activities they have hidden.”
In response to the misrepresentation and obfuscation of the government intelligence collection programs, OTG outlines several recommendations for administrative action to curb secret law and restore accountability, including the release of authoritative legal interpretations of the Executive Branch, existing FISC decisions and opinions, and declassified Presidential Policy Directives – all of which AALL strongly supports.
Beyond the aforementioned surveillance programs, the 2013 Secrecy Report also considers the status of open and accountable government in other areas. With regards to the Freedom of Information Act (FOIA), this year’s assessment shows that while agencies continue to make progress in reducing their FOIA request backlog, requesters must still wait far too long to get a response. There has also been been a dramatic increase in decisions to withhold information about government deliberations. While the number of people with the authority to create new secrets continues to drop, the volume of classified material continues to grow and overwhelms the government’s declassification efforts. With the National Declassification Center poised to fail to meet its December 31 deadline, the center “has released 57 million pages to the public, a 61 percent release rate.” Further, OTG found far too much material is marked at a classification level beyond its risk to national security. While there have been some reductions in secrecy during the Obama administration’s tenure, the rate of change is “well below what it would take to make the government open and accountable.”
AALL is a founding member of OpenTheGovernment.org, a coalition of 80+ groups advocating for open and accountable government. We commend OTG for this year’s impressive report and we will continue to work with the coalition to promote greater transparency at the federal level.