On Monday, the President signed the Fiscal Year 2014 Intelligence Authorization Act into law, allocating a classified amount of funding to the intelligence community over the next five years. In addition to the appropriation, this act contains a limited reporting requirement for significant interpretations of law by the intelligence community, an attempt to prevent insider leaks, and modest whistleblower protections for intelligence community employees (although these do not extend to private contractors).
Using Intelligence Authorization Acts, the U.S. Congress leverages its control over government purse strings to increase congressional oversight of covert actions. Unfortunately, this year’s provisions fall short of reforming one of the most problematic aspects of U.S. surveillance: overclassification. Access urges the U.S. government to reduce the amount of information it keeps classified, which would increase accountability and public trust, decrease the risk of unauthorized disclosures, and help bring U.S. surveillance in line with the International Principles on the Application of Human Rights to Communications Surveillance.
Classified spending: Public funds without public oversight.
Perhaps what is most notable about this appropriation authorization is what is (yet again) missing. While the U.S. government has released its total intelligence spending since 2007, it still does not publicly disclose how it uses those funds. Although the Congressional Budget Office estimates that funding the unclassified portions of the act will cost $564 million over the next five years, the breakdown of the appropriations authorized by the law are in a separate, classified schedule.
When the entire 2013 “black budget” was released by the Washington Post last year as part of the Snowden revelations, the public got unprecedented insight into the bureaucratic and operational aspects of U.S. surveillance. Among other things, the budget revealed that the CIA and the NSA have initiated aggressive “offensive cyber operations” programs, through which they hack into foreign computer networks for the purposes of espionage or sabotage.
Classification of the budget prevents us from accessing this crucial data, hurts external oversight, and stunts civic debate. The public does not have access to important information about how taxpayer money is used for various intelligence programs, and cannot evaluate the efficacy or ethical implications of this government spending. The continued secrecy shrouding the black budget undermines the Principle of Public Oversight, and should be reconsidered.
Required reporting of significant legal interpretations: Necessary, but not sufficient.
The reporting section of the act requires the intelligence community to inform the congressional intelligence committees of significant interpretations of law regarding intelligence activities, and the activities authorized by these interpretations. While reporting might prevent pernicious legal interpretations by the intelligence community, this provision may not require as much transparency as appears on first blush. The intelligence community still has the opportunity to shirk reporting, as they only have to provide these legal interpretations “to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matter.” The president can also choose to limit reporting of these interpretations to just a select few members of congressional leadership, rather than the full congressional intelligence committees. Further, the provision does not apply retroactively, so would not shed any light on any existing legal interpretations.
One “significant legal interpretation” by the intelligence community (and approved by the Foreign Intelligence Surveillance Court) authorized collection of the phone records of every American under a FISA provision concerning access to “business records.” Since it became public, this broad interpretation has been denounced by civil society groups, federal judges, nearly half of the House of Representatives, and the independent Privacy and Civil Liberties Oversight Board, among others. Had this new provision been in force at the time, the Section 215 interpretation might have been reported to the congressional intelligence committees. However, given the vaguely-worded loopholes, this law probably would not have brought forth full and frank reporting on the Section 215 telephone data collection program.
Keeping legal interpretations secret prevents Congress from adequately performing its oversight and informing duties, which undermines representative democracy. Fundamentally, secret legal interpretations are incongruous with the rule of law. This fatally undermines the legitimacy of surveillance operations, and fails to live up to the Principle of Legality. While the new reporting requirement represents encouraging progress, it may not be enough to ensure that the intelligence community sufficiently subject its significant legal interpretations to public scrutiny.
One section of “Security Clearance Reform” calls for “continual” monitoring of intelligence community employees and contractors, and mandates information sharing within the intelligence community. Agencies now must circulate “potentially derogatory security information” about employees and contractors that could impact their security clearances. These provisions expand the current security evaluation program, which crosschecks intelligence community members’ at-work behavior with information about their personal lives in order to detect unauthorized leaks.
Because the budget is classified, it will not be divulged how much of the 2014 appropriation will go toward this initiative, or how the increased monitoring system performs. Rather than focus on increased information sharing and employee monitoring schemes, which may have privacy and security costs as well as undoubted fiscal costs, the intelligence community should classify less information and offer fewer security clearances, thereby decreasing the odds of unauthorized disclosures of what is truly sensitive security information.
Weak whistleblower protections.
The act also includes a whistleblower protection provision barring intelligence community employees from facing reprisals for “lawful disclosure of information” to the congressional intelligence committee members or a few select higher-ups within the intelligence community. A “lawful disclosure of information” is one the employee “reasonably believes” shows unlawful activity, waste or abuse, or activity that could endanger public health or safety.
Notably, the protections lack a strong enforcement mechanism, giving the president discretion over how protections are carried out. Moreover, the protections apply only to government employees, not the private contractors like Edward Snowden, who account for 70% of the intelligence budget.
Further, although the U.S. intelligence community has repeatedly touted the sufficiency of its internal oversight mechanisms, the community cannot credibly claim to be policing itself if it does not extend protections to those who would shed light on illegal and abusive activity. Unless the U.S. government extends protections to the individuals most likely to know about surveillance abuses, it cannot adequately safeguard against illegitimate surveillance as required by the Principles.
Congress should expand whistleblower protections for intelligence community employees and contractors. As the federal government increasingly outsources its core activities, including surveillance activities, the failure to protect whistleblowers is at odds with promoting an accountable government.
Conclusions: Less secrecy, more security
While this act contains welcome, if modest reforms, it does little to alter the troubling degree of secrecy in the intelligence community. Overclassification does not comport with the Principles of Transparency and Public Oversight, which are foundational for any rights-respecting surveillance regime. Access encourages the U.S. government to declassify as much information as possible, thus decreasing the number of people who must have security clearances, and increasing transparency and national security.