Adventures in FOIA‐​Land (or: Red Tape Is Not Transparent)

The Justice Department's Inspector General has just completed their most recent review of surveillance under the FISA Amendments Act of 2008, which is set to expire at the end of this year. The report, however, is classified—meaning the public is unlikely to see it before Congress votes to reauthorize the law for another five years during the lame duck session. Steven Aftergood of the Federation of American Scientists is trying to get a declassified version released—but he's probably got a long wait ahead of him.

As regular readers of the Cato blog may recall, I recently wrote about my efforts to get even earlier versions of this report out of the government, in hopes of understanding something about the National Security Agency's use of the sweeping surveillance powers granted by the FISA Amendments Act. Because it authorizes broad, programmatic interception of international communications without individualized search warrants, Congress insisted that the intelligence community produce a semi-annual report evaluating the NSA's compliance with the law's various procedures and safeguards, and highlighting potential civil liberties issues. Given the vast scale of surveillance under the FAA, it's hardly a guarantee of adequate oversight, but it's something. The ACLU had managed to get the first few such reports released, under the Freedom of Information Act, so way back in June, I filed a FOIA request of my own for the most recent reports. I asked for expedited review, arguing that since Congress is expected to extend those surveillance powers before the end of December, there was a strong public interest in getting these evaluations out as early as possible. Let me say again: I submitted this request in June.

In September—long past the statutory deadline of 20 business days—I finally heard back from the Justice Department, which said they could "neither confirm nor deny the existence" of reports that were required by federal law. Unsurprisingly, I appealed this facially ridiculous denial of my request—and to her credit, the senior FOIA officer at DOJ immediately acknowledged that this response had been inappropriate.  By mid-September, just under three months after my initial request went in, I was informed that they'd identified the reports I was looking for and forwarded them to the Office of the Director of National Intelligence (ODNI) for a declassification review, which they expected would be completed by early November. Joy! Would we actually get information about an intelligence program out of the government without a lawsuit? Maybe even in time to have a semi-informed public debate?

Well, no. ODNI informed me earlier this month that they were wrapping up their review and redaction Any Day Now, at which point... their redacted version would be forwarded, one at a time, to every other intelligence agency whose activities were referenced in the report. At each agency, it would go to the back of the line of FOIA requests, exactly as though it had just been submitted for the first time. Estimated time before a heavily censored version of these reports see the light of day: Another six months. At least. By which time, it won't matter much what these reports say about NSA's use of its sweeping powers, because Congress will have already given them another five years of spying authority.

Notice what this means in practice: Even though a court has already established, thanks to an ACLU lawsuit, that they are legally required to release redacted versions of these reports to the public on request, a cumbersome bureaucratic process effectively guarantees that it takes a solid year to get this information out, which means at best you're working with what the assessment found two reports ago, allowing the government to assert that they've fixed whatever problems were found. In this case, the timing of the review process conveniently guarantees that whatever we learn will come far too late to influence this year's vote on FAA powers, but be old news by the time Congress takes up the question again. It's a little hard to swallow the claim that all this delay is remotely necessary: Are we really supposed to believe that the Office of the Director of National Intelligence will be so slipshod about letting sensitive classified information through that their work has to be independently double checked by every other intelligence agency? And that this process has to take six months or longer, even after ODNI has done their initial review and redaction? Of course it doesn't: This is a bureaucratic procedure designed, not to protect national security, but to allow stalling on the release of politically inconvenient information that the courts won't allow to be completely hidden from the public.

This is, needless to say, a far cry from early promises that Obama would preside over "the most transparent administration in history"—and it's part of a larger pattern of failure on that front. What we should really be asking is why I had to submit this request at all. In his first days in office, after all, President Obama issued a directive not only urging agencies to err on the side of disclosure, but to adopt a policy of proactive release of documents likely to be of public interest. Surely if there were any doubt about the public interest in the use of sweeping surveillance powers, it should have been put to rest after the ACLU won release of the earliest compliance reports. So why didn't the Justice Department follow President Obama's directive and draft these reports with an eye toward preparing a declassified public version, knowing full well that civil liberties groups would come asking? Well, because then they wouldn't be able to obfuscate and delay for months and months. Because then the public might be able to have an informed discussion about the secret surveillance powers we've given our spy agencies before we vote to extend them. Heaven forfend.

So will there be any consequences for officials who've so flagrantly disregarded the president's transparency directive? Or was the "order" to adopt more transparent policies just a bit of political theater, delivered with a wink and a nudge? I have my suspicions, but Obama still has time to prove me wrong.