Snowden case threw 'hand grenade' into government secrecy, openness expert says

Wednesday - 10/23/2013, 4:47pm EDT

Patrice McDermott, executive director, OpentheGovernment.org

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Each year, a coalition of 80 groups under the umbrella OpenTheGovernment.org tries to assess the level of government secrecy. It looks at the official data, like the number of national security letters, open-records requests and backlogs.

Patrice McDermott, the coalition's executive director, told Federal Drive with Tom Temin and Emily Kopp Tuesday that Edward Snowden's revelations about National Security Agency surveillance have changed how the groups see those data points.

"It's a hand grenade that was thrown in the room," McDermott said. "It overturned, it upset everything we thought we know about what the government was doing in terms of its authority under the U.S.A. Patriot Act and under the FISA Amendents Act of 2012."

Before Snowden's revelations, those at OpenTheGovernment.org thought the letter of the law was fairly clear and that the Department of Justice was releasing regular reports about what it was doing about national security letters and collecting information regarding U.S. citizens and legal residents.

Patrice McDermott, executive director, OpentheGovernment.org

Instead, DoJ was conducting what McDermott described as a "shell game," which has been detrimental to the monitoring process.

"The hints were there that things were really not what they seemed," she said. "Certainly, Sen. [Ron] Wyden (D-Ore.) and Sen. [Mark] Udall (D-Colo.) had tried to indicate this, but these numbers just threw a window open or they blew the roof off what we thought we knew. We don't know the size of secrecy in the government and we don't know the size of openness in government. It tends to be anecdotal, because it's hard to know and track in any one agency how much more information they're putting up that they didn't have to put up."

Adding to all this uncertainty is that many of the numbers the Information Security Oversight Office collects can't be published because they're classified.

"They're classified numbers about classified numbers," McDermott said. "We don't know the size of the behemoth and it's very hard to get your arms wrapped around it." The coalition estimated a few years ago that about 2.5 million people had security clearances. It recently discovered that number is closer to 5 million.

Outside the intelligence arena, the coalition reported that Freedom of Information requests increased slightly, while processing backlogs have decreased by 14 percent. These means that some agencies are making progress in making their records more open.

"The ones with the biggest problems particularly put a lot of resources behind that," McDermott said. "We know that there are significant backlogs, including in many agencies, and we do know that agencies are not meeting their 20-day requirement to tell people 'Here's your information' or 'Here's why we can't give it to you.' Most agencies don't meet that."

Part of the problem is that many agencies haven't met the requirements introduced in the 2007 FOIA amendments, including adding a public liaison.

Despite these hurdles in FOIA processing and secrecy, McDermott said that in many areas she has seen a greater effort toward openness since the coaltion began issuing its openness report cards in 2004. She pointed to President Barack Obama's decision to release information about the country's nuclear stockpile and its nuclear defense posture as well as the intelligence budget as examples of this greater openness.

"These are really important steps forward," she said. "So, I think there's some hope that we will continue to make some progress."

Asked what one thing the government should do that would have the greatest impact on openness, McDermott said it should provide access to secret interpretations of law made by judges in the FISA Court. She said the court is not just reviewing warrants — it is issuing opinions that significantly alter what agencies are able to do.

"The Patriot Act says that Department of Justice and FBI, and not the NSA, could get tangible records from particular persons where there was a real link, a nexus to an agent of a foreign power or some terrorist activity," McDermott said. "That was completely blown out the window by the FISA Court opinions that allowed bulk collections — the things that we're seeing that allow them to go and collect, even if it's just the metadata ... that they could collect the emails of all Americans or the telephone records of all Americans. Maybe they can't read the content, but they have them. This is not what the law says."