Milbank: The backlash of too much secrecy
WASHINGTON Keep your distance: The director of national intelligence is having intestinal distress.
"For me, it is literally not figuratively, literally gut-wrenching to see this happen," James Clapper told NBC News' Andrea Mitchell over the weekend, referring to leaks about the government's secret program to collect vast troves of phone and Internet data.
There might be a bit more sympathy for Clapper's digestive difficulty if he hadn't delivered a kick in the gut to the American public just three months ago.
Sen. Ron Wyden, D-Ore., asked Clapper at a Senate hearing in March, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
"No, sir," Clapper testified.
"It does not?" Wyden pressed.
"Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."
We now know that Clapper was not telling the truth. The National Security Agency is quite wittingly collecting phone records of millions of Americans, and much more.
As the administration and some in Congress vent their anger about leaks to The Washington Post and to Britain's Guardian newspaper, officials have only themselves to blame. It is precisely their effort to hide such a vast and consequential program from the American public that caused this pressure valve to burst. Instead of allowing a democratic debate about the programs in broad terms that would not have compromised national security, their attempts to keep the public in the dark have created a backlash in which the risks to national security can't be controlled.
Edward Snowden, the leaker, did the honorable thing in revealing his identity; it would be more honorable if he would turn himself in and face the consequences for his law-breaking. But there is little honor in the way administration officials and lawmakers have avoided responsibility. Obama administration officials are blaming Snowden, while some lawmakers complain disingenuously that the administration kept them out of the loop.
"All of us are sort of asking what in the world has gone on," a seemingly bewildered Eric Cantor, R-Va., the House majority leader, alleged Monday on CBS' "This Morning."
Host Norah O'Donnell asked whether he had known about the program before the leaks.
"Well," Cantor replied, "there are a variety of of classified programs that exist for us to, again, guard against a terrorist threat. And ... "
Asked whether the Obama administration's surveillance went further than the George W. Bush administration's, Cantor said that "these are questions we don't know the answers to."
"How do you not know the answer?" O'Donnell asked.
Good question. All 535 members of Congress had authorization to learn all about the programs. Senators even received a written invitation in 2011 to view a classified report. Likewise, Rep. Peter King, R-N.Y., a former chairman of the Homeland Security Committee, said Monday that members "could have gotten a briefing whenever they wanted to."
But apparently few bothered. Worse, lawmakers quashed efforts to allow even modest public disclosure of the broad contours of the program. Steven Aftergood, who runs the Federation of American Scientists' Project on Government Secrecy, lists the various ways in which the administration, Congress and the courts denied the public any right to know:
The Justice Department and the DNI promised a new effort to declassify opinions issued by the Foreign Intelligence Surveillance Court; Justice official Lisa Monaco, now Obama's counterterrorism director, said all significant FISA rulings would be reviewed for declassification. But no new opinions were declassified.
The House last year turned back attempts to require public reports on the general outlines of the government's surveillance programs. The various disclosure proposals, offered by Democratic Reps. Bobby Scott of Virginia, Jerrold Nadler of New York and Sheila Jackson Lee of Texas, were defeated.
In the Senate, amendments to provide modest disclosures and declassifications, offered by Wyden and fellow Democratic Sens. Jeff Merkley of Oregon and Mark Udall of Colorado during the FISA renewal in December, were all defeated.
And after senators asked the FISA court to provide declassified summaries of its decisions, the chief judge, Reggie B. Walton, responded with a letter on March 27 citing "serious obstacles" to the request.
"It was a shoddy performance all around," Aftergood said Monday. "The pervasive secrecy on this topic created an information vacuum. If congressional oversight was not going to fill it in, it turned out leaks would. That's not the optimal solution."
Not optimal, but probably inevitable. Officials who denied the public a responsible debate on surveillance will now have a debate on Snowden's terms and there's no use in bellyaching about it.
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