A previous version of this article incorrectly identified Sen. Ron Wyden of Oregon as a Republican. He is a Democrat. This version has been updated.
The disclosure of vast government surveillance programs has renewed the debate about whether the kind of transparent oversight that Americans expect from their government can work if it might compromise efforts to keep them safe from terrorism.
President Obama and his national security leaders have asserted that vigorous oversight of government surveillance of phone calls and Internet data exists and denounced media reports that brought the programs to public attention.
On Saturday, Director of National Intelligence James R. Clapper Jr. called the reports “reckless disclosures,” while also scoring the media for not giving “full context” to the “extent to which these programs are overseen by all three branches of government.”
But civil libertarians, some members of Congress and others criticize the oversight as hollow. Secrecy binds the traditional role of Congress to openly debate the programs, they say, while the special court established to deal with the government’s requests under the Foreign Intelligence Surveillance Act operates out of public view.
“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” said Stephen I. Vladeck, a law professor at American University’s Washington College of Law and an expert on national security law.
“The lack of transparency really impacts negatively the ability of Congress to conduct effective oversight,” said Amie Stepanovich of the Electronic Privacy Information Center. “Members of Congress are representatives of the people. But the public has been kept totally in the dark about these programs.”
Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said judicial oversight of the programs is undermined when the only court entrusted to make sure Americans’ rights are not compromised “meets in secret, allows only the government to appear before it and rarely publishes its decisions.”
Obama, a bipartisan group of congressional leaders and Clapper have pushed back hard against such assertions. Clapper declassified for release Saturday ways in which he said the programs are monitored, including “an unprecedented degree of accountability and transparency” to members of Congress through a variety of reports and briefings to congressional intelligence and judiciary committees.
But members of Congress on their own have no way of knowing whether violations of procedure have occurred, and any public discussion of the reports is curtailed.
That is why some members of Congress were cryptic in public comments about the surveillance programs
Sen. Ron Wyden (D-Ore.), for example, warned that Americans would be “stunned” if they learned how the government had interpreted Section 215 of the Patriot Act. He was probably referring to the dragnet surveillance of call records that was revealed by the Guardian, a British newspaper, on Wednesday. But because the program’s existence was classified, Wyden was barred from publicly disclosing what he learned as a member of the Senate Intelligence Committee.
“The Intelligence Committee knew, and members [of Congress] could go into the Intelligence Committee room and read the documents,” said Jennifer Hoelzer, a former Wyden staffer. “But they couldn’t bring staff, they couldn’t take notes, they couldn’t consult outside legal scholars.”
Moreover, Hoelzer said, there is little incentive for a member of Congress to object to something that the administration says is necessary to combat terrorism. “Nobody necessarily wants their fingerprints on anything that could ever go wrong,” she said. “They may be for or against it in theory, but they don’t want their name on the record.”
The FISA court has similarly been the subject of complaints.
The Foreign Intelligence Surveillance Court, created in 1978 in response to fears of abusive government spying, operates from a secure courtroom in the D.C. federal courthouse. It is composed of 11 federal judges chosen by the chief justice of the Supreme Court. Unlike a regular court, only the government appears before it when a judge considers programs such as the telephone records search revealed by the Guardian or the PRISM Internet surveillance program that paper and The Washington Post uncovered last week.
One judge at a time considers the government’s requests, and any denials can be appealed to a three-member panel. But that is rare. The court reported that in 2012, it approved each of the 1,789 eavesdropping requests it received from the Justice Department, save for one that was withdrawn. The court made modifications in 40 of the requests.