2009, President Barack Obama promised that his administration would be “the most open and transparent in history.” It did not take long for that promise to be tossed aside, and it has been clear for quite a while that this administration is perhaps the most secretive in history. A new analysis by AP of how the administration responds to FOIA requests confirms that it is becoming even more secretive each year:
The Obama administration more often than ever censored government files or outright denied access to them last year under the U.S. Freedom of Information Act, according to a new analysis of federal data by The Associated Press.
Basically, the administration is doing everything possible to keep information secret. Despite President Obama’s memo to the federal government upon taking office on the importance of openness in responding to FOIA requests, the government has done exactly the opposite. His memo, you may recall, stated:
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
Compare that to the reality:
In a year of intense public interest over the National Security Agency’s surveillance programs, the government cited national security to withhold information a record 8,496 times — a 57 percent increase over a year earlier and more than double Obama’s first year, when it cited that reason 3,658 times. The Defense Department, including the NSA, and the CIA accounted for nearly all those. The Agriculture Department’s Farm Service Agency cited national security six times, the Environmental Protection Agency did twice and the National Park Service once.
And five years after Obama directed agencies to less frequently invoke a “deliberative process” exception to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.
Yes. It appears that “the most transparent administration in history” has never been all that transparent, and it’s only getting worse along with the NSA.
Prompted by a leak that showed the NSA had given an Australian intelligence agency the go-ahead to intercept communications between a US law firm and its Indonesian clients.
The outgoing head of the National Security Agency has a message to the nation’s lawyers: Your clients’ secrets are in safe hands.
NSA director Gen. Keith Alexander assured the American Bar Association in a letter that the U.S has policy and legal safeguards to prevent the mishandling of confidential attorney information collected during surveillance missions.
That’s the summary version of Alexander’s response letter. The letter itself goes into a bit more depth on minimization procedures, but Alexander also takes time to throw out a few statements and asides that are somewhat questionable, when not being entirely self-serving.
Alexander jabs the entities reporting on leaks not once, but twice, and that’s just on the first page.
At a time when certain aspects of the reporting and commentary about the National Security Agency (NSA) shed more heat than light on important matters of security, liberty, and privacy worthy of meaningful public discussion, we also appreciate the thoughtful and constructive approach of your inquiry…
Although it is not possible to address press reports about any specific alleged intelligence activities–and thus to point out the absence of critical factual information in any such reports–we appreciate the opportunity to clarify our current policies and practices…
“They’re completely wrong and I’d love to tell you exactly how wrong, but national security and all that. Just trust me.”
Here’s Alexander in the middle of a long-delayed rebuttal to the attorney-client surveillance story, making a statement that plays to the very edges of the “questionable” box.
Moreover, NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law…
The agency doesn’t “ask,” but it’s not as if it’s in any hurry to say “no” when foreign agencies offer access to their surveillance treasure troves. Our own domestic telcos have been enthusiastic in their compliance with intelligence and investigative agencies, often offering services above and beyond what’s actually been “asked” for. Likewise, the cozy “five eyes” relationship has resulted in a great deal of mutually beneficial data sharing, none of which any agency had to specifically “ask” for. Alexander’s statement is not unlike a corrupt politician noting he never asked for a bribe but wasn’t just going to leave the suddenly unattended suitcase full of money laying where anyone else could pick it up.
Alexander spends the bulk of the letter detailing the various minimization procedures the NSA must adhere to, with the most relevant procedure being handed down by the FISA court itself.
As soon as it becomes apparent that a communication is between a person who is known to be under a criminal indictment in the United States and an attorney who represents that individual in the matter under indictment (or someone acting on behalf of the attorney), monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose. The relevant portion of the communication containing that conversation will be segregated and the National Security Division of the Department of Justice will be notified so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution, while preserving foreign intelligence information contained therein.
Of course, the problem here is that anything not related to someone “under a criminal indictment” is still fair game. And the rest of the letter, while reassuring, also notes that it’s inevitable that attorney-client communications will be swept up, simply because the agency runs a variety of bulk collection programs. So, the response is more of a “we’ll do our best to minimize” rather than a promise it won’t intercept attorney-client communications.
That’s the problem with bulk, untargeted surveillance. All anyone has left is the hope that the agency rigorously adheres to its minimization policies, and there’s plenty of evidence that suggest the NSA has overstepped its boundaries in the past. In the end, the ABA is right back where it started — operating under an “uncertain privilege” which, as it pointed out in its earlier letter (quoting the Supreme Court), “is little better than no privilege at all.”
NSA Response Below:
NATIONAL SECURITY AGENCY FORT GEORGE G. MEADE, MARYLAND 20755-6000 10 March 2014 Mr. James R. Silkenat President, American Bar Association 321 North Clark Street Chicago, IL 60654-7598 Dear Mr. Silkenat: Thank you very much for your letter of February 20, 2014, regarding the importance of preserving and respecting the attorney-client privilege. We greatly appreciate the work of the American Bar Association (ABA) and the organization's mission of "defending liberty and delivering justice." At a time when certain aspects of the reporting and commentary about the National Security Agency (NSA) shed more heat than light on important matters of security, liberty, and privacy worthy of meaningful public discussion, we also appreciate the thoughtful and constructive approach of your inquiry. NSA is firmly committed to the rule of law and the bedrock legal principle of attorney- client privilege, which as you noted, is one of the oldest recognized privileges for confidential communications. We absolutely agree that the attorney-client privilege deserves the strong protections afforded by our legal system, and that it is vital that proper policies and practices are in place to prevent its erosion. Although it is not possible to address press reports about any specific alleged intelligence activities--and thus to point out the absence of critical factual information in any such reports--we appreciate the opportunity to clarify our current policies and practices and to work with the ABA to ensure that the public has confidence that our intelligence institutions respect the role of privileged communications. Let me be absolutely clear: NSA has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications acquired during its lawful foreign intelligence mission in accordance with privacy procedures required by Congress, approved by the Attorney General, and, as appropriate, reviewed by the Foreign Intelligence Surveillance Court. Moreover, NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law. This broad principle applies to all of our signals intelligence activities, including any activities that could implicate potentially privileged communications. NSA conducts signals intelligence activities in accordance with Executive Order (E0) 12333 and the Foreign Intelligence Surveillance Act (F ISA), as appropriate. As you are aware, under ISA the Agency may not target any unconsenting U.S. person anywhere in the world under circumstances in which the U.S. person would enjoy a reasonable expectation of privacy without an individualized determination of probable cause by a federal judge (absent certain limited exceptions, such as an emergency) that the target is a foreign power or an agent of a foreign power. The term person" could include an individual, company, or other organization such as a U.S. law firm. Moreover, FISA states that otherwise privileged
TTIP / TAFTA
one aspect of TAFTA/TTIP that practically everyone agrees is a bad idea, it’s corporate sovereignty. Even against that background, it’s still slightly surprising to read in the well-regarded German newspaper Die Zeit that the German government too wants it out of TTIP (via @FSchweitzer, original in German):
The German federal government rejects special rights for corporations in the free trade agreement between the EU and the USA. “The federal government is doing all it can to ensure that it doesn’t come to this,” said the Secretary of State in the Federal Ministry of Economics, Brigitte Zypries, on Wednesday during question time in parliament. “We are currently in the consultation process and are committed to ensuring that the arbitration tribunals are not included in the agreement,” said Ms Zypries.
The Secretary of State then went on to make a point many others have emphasized:
“The German federal government’s view is that the U.S. offers investors from the EU sufficient legal protection in its national courts,” said the SPD politician Zypries. Equally, U.S. investors in Germany have sufficient legal protection through German courts. “From the beginning, the federal government has examined critically whether such a provision should be included in the negotiations for a free trade agreement,” Zypries said.
Corporate sovereignty measures were added to earlier bilateral agreements when the legal systems of the country receiving foreign investment raised issues about their independence or where there was a fear that local governments might expropriate property with impunity. Neither can seriously be considered a risk in the case of the EU and US, and so investor-state dispute settlement (ISDS) is redundant, as the German government recognizes here.
If this really is Germany’s view, it will have major consequences for the negotiations, since the European Commission won’t be able to get TAFTA/TTIP accepted by the EU without Germany’s full support. There remains some room for doubt, though, as the German Secretary of State also said:
arbitration tribunals of this kind should only be brought in as a last resort after exhausting all legal remedies brought in national courts.
If ISDS is excluded from TTIP, then that comment makes no sense, since there won’t be the option to turn to supra-national tribunals after exhausting the legal process in national courts. So maybe Germany expects to be “persuaded” by concessions from the European Commission to change its mind at some point. But even if the German government is not totally abandoning the idea of corporate sovereignty, the fact that a senior politician is prepared to go on the record with the comments quoted above is significant. Germany’s leaders obviously feel the need to distance themselves from ISDS, which is fast turning into a serious political liability.
Sources: http://www.techdirt.com/articles/20140317/07234226587/most-transparent-administration-history-sets-new-record-denying-freedom-information-requests.shtml , http://www.techdirt.com/articles/20140313/10571526568/even-german-government-wants-corporate-sovereignty-out-taftattip.shtml , http://www.techdirt.com/articles/20140312/08541426546/nsa-responds-to-attorney-client-privilege-concerns-well-probably-grab-your-communications-well-try-not-to-listen.shtml