Greater Egret

Thursday, July 28, 2011


“When the American people find out how their government has secretly interpreted the Patriot Act, they are going to be stunned and they are going to be angry.” Senator Ron Wyden
In late May I wrote about the dire warnings issued by Oregon Senator Ron Wyden concerning Obama Administration privacy and secrecy abuses. This President, who campaigned on a platform criticizing his predecessors use of the Patriot Act to spy on innocent americans, has apparently outbushed Bush. Unfortunately, we will probably never know the magnitude of the intrusion since it is all cloaked in national security paranoia and doublespeak.

The Obama Administration rebuffed Senator's Wyden and Udall in a letter published yesterday. Kathleen Turner, director of legislative affairs for the Office of the Director of National Intelligence, said that a joint oversight team “has not found indications of any intentional or willful attempts to violate or circumvent” the Foreign Intelligence Surveillance Act or FISA, which was amended in 2008.

The ACLU released a report on the government secrecy today which can be read here. The report was written by Mike German, a former FBI undercover agent, and Jay Stanley. The government made a record 76.8 million classification decisions in 2010 according to the report, some of the redactions and classifications placed on the most banal material, long de-classified or in the public domain. The government tried to charge an ex NSA employee for using the word fiber optic in a missive, the charges were ultimately thrown out of court.

This is one of the paragraphs in the preface:

...the framers of our Constitution established a system of checks and balances among
separate, co-equal branches of government to curb abuses of power and suppress the natural tendency of government to encroach on individual rights. Our current national security secrecy regime threatens to destroy this careful balance. The power to hide government actions from public accountability is simply too great an invitation to abuse. Congress has the power and the duty under our Constitution to remedy this situation. The American people depend upon their elected representatives in Congress to oversee and regulate the government’s activities on their behalf and for their benefit.

Unfortunately, even many of our elected representatives have no idea what the government is doing and how they are spying on ordinary americans. They are not allowed to know. Our own Senators.

The report excoriates the Obama Administration for abusing the privacy and secrecy laws and for its casual and convenient use of the states secrets privilege. I really recommend that you read the report in its entirety. It shows that contrary to his rhetoric, Obama has prosecuted whistleblowers he promised to protect and also kept the leaden veil over prior torture abuses. He has in some cases been worse than his predecessor in many respects in regards to protecting american's civil rights and liberties. The constitutional scholar.

Also, in 2010, the Obama DOJ issued a secret OLC opinion that re-interpreted the Electronic Communications Privacy Act (ECPA) to allow the FBI to ask telecommunications companies to provide them with certain telephone records on a voluntary basis, even where there is no emergency and no legal process, such as a Grand Jury subpoena, National Security Letter or court order.

Ironically, the FBI sought the OLC opinion after the DOJ Inspector General criticized the FBI for using “exigent letters” and other informal requests to illegally obtain communications records in violation of ECPA. The IG report said, “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.”

Unfortunately, DOJ has not released the OLC opinion, so the public has no way of understanding how the government can obtain their telephone records without legal process.

While the IG report reveals the existence of this secret OLC opinion, it is redacted in a manner that masks the provision of law in question, the types of telephone records the FBI seeks access to, and the legal arguments supporting its interpretation. The OLC opinion has not been released. In a letter denying a McClatchy News FOIA request for the OLC opinion, DOJ may have revealed the provision of law that is being reinterpreted.

According to the Washington Post, there are 1,271 government organizations and 1,931 
private companies working on programs related to counterterrorism, homeland security 
and intelligence, and an estimated 854,000 people hold top-secret security clearances.

In 2009, the Government Accountability Office estimated that about 2.4 million Department of Defense civilian, military and contractor personnel hold security clearances at the confidential, secret and top secret levels.

 Remarkably, this figure does not include personnel at intelligence agencies like the Central Intelligence Agency and Federal Bureau of Investigation. The Intelligence Authorization Act of 2010 required the Director of National Intelligence (DNI) to calculate and report the aggregate number of security clearances for all government employees and contractors to Congress by February 2011, but the DNI has so far failed to produce this data.

According to the Information Security Oversight Office (ISOO), the government made a 
record 76,795,945 classification decisions in 2010, an increase of more than 40% from 
2009. ISOO changed the way it counted electronic records in 2009 so exact year-to-year 
comparisons are not possible, but this figure is more than eight times the 8,650,735 classification decisions recorded in 2001.  One-fourth of the security classification guides the government used in 2010 had not been updated within five years as required.

“Derivative classification” in particular has exploded. Fully 99.7% of classification decisions are not made by the government’s trained “original classification authorities” (OCAs), but by other government officials or contractors who may have received little or no training and wield a classification stamp only because they work with information  derived from documents classified by OCAs.

Document reviews conducted by ISOO in 2009 discovered violations of classification rules 
in 65% of the documents examined, with several agencies posting error rates of more 
than 90%. Errors which put the appropriateness of the classification in doubt were seen 
in 35% of the documents ISOO reviewed in 2009, up from 25% in 2008. A similar analysis was not included in the 2010 ISOO report.

The cost of protecting these secrets has also skyrocketed over the last several years. ISOO estimated security classification activities cost the executive branch over $10.17 billion in 2010, a 15% increase from 2009, and cost industry an additional $1.25 billion, up 11% from the previous year. A meager 0.5% of this amount was spent on declassification. The government spent only $50.44 million on declassification in 2010, which is $182.74 million less than it spent in 1999. The fact is, there are significant physical costs associated with protecting our secrets, and unnecessary classification wastes security resources.

Refused to declassify information about how the government uses its authority under section 215 of the Patriot Act to collect information about Americans not relevant to terrorism or espionage investigations.

These are just a few areas of concern covered by the report. Too many people have potential access to our private information and we can't know, why, what, or where. The last paragraph I cite is the most chilling and troubling to me. When did we decide as an American people that our government was entitled to read, vacuum or datamine our private communications, without a warrant, clear reason or a probable cause to search?

"A popular government without popular information, or the means of acquiring it, is but a
prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance;
and the people who mean to be their own governors must arm themselves with the power,
which knowledge gives." Letter from James Madison to W.T. Barry (Aug. 4, 1822)

“Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means.”
— Sen. Ron Wyden

I found an interesting new blog today - Steven Aftergood's Secrecy News.


Anonymous said...

Looks like wikileaks needs to publish a few documents to clarify a few things for the American people, if they can get their hands on any of this. I'm not for endangering the lives of citizens or throwing a wrench into diplomatic relations by publishing potentially inflammatory communications, but our government has become increasingly opaque in the last forty years and has instituted more secrecy into releasing documents that are made public through the Freedom of Information Act, blacking out important pieces of history, let alone covering up motives and strategies that we only witness the blowback from. The newspaper was historically considered the fourth branch of our government, but since they have been appropriated by corporate interests, it becomes increasingly difficult to get the straight story. But its always been this way. We only like to believe that America is somehow different. Lately its becoming more like the governments that we fought so hard to defend ourselves from. Wiretapping is so much easier these days and much more thorough. "Enhanced interrogation techniques" are seen now as sometimes useful. If we are as a people to enpower ourselves with knowledge as the Madison quote says, maybe wikileaks is our only glimmer of hope of actualizing that, as repulsive as that may sometimes be.

windowdancer said...

It just goes to show that the more things change the more they stay the


Blue Heron said...

Wow, Window Dancer. Back. I am honored.