PolitiFact: Secret hearings, rulings are clearly not ‘transparent’

This article was edited for length. To see a complete version and its sources, go to www.politifact.com/truth-o-meter/statements/2013/jun/21/barack-obama/barack-obama-says-foreign-intelligence-surveillanc/.

The Foreign Intelligence Surveillance Court “is transparent.” -- President Barack Obama during an interview June 17 with Charlie Rose

President Barack Obama has taken a lot of criticism following disclosures about how the U.S. government monitors telephone and Internet traffic.

During an interview June 17 with Charlie Rose, Obama made several claims in defense of government surveillance.

One exchange in particular struck us as noteworthy. It involves the Foreign Intelligence Surveillance Court, a special court that hears government requests for warrants related to national security investigations.

Rose: “So I hear you saying ‘I have no problem with what NSA has been doing.’ ”

Obama: “Well, let me finish, because I don’t. … (The FBI has) to go to the FISA court with probable cause and ask for a warrant.”

Rose: “But has FISA court turned down any request?”

Obama: “First of all, Charlie, the number of requests are surprisingly small, No. 1. No. 2 — folks don’t go with a query unless they’ve got a pretty good suspicion.”

Rose: “Should this be transparent in some way?”

Obama: “It is transparent, that’s why we set up the FISA court. … My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather, are we setting up a system of checks and balances?”

We wondered whether Obama has justification for saying that the FISA Court “is transparent.”

The FISA Court was established in 1978 to oversee a system that many observers believed had been widely abused by prior administrations. National Security Agency requests for warrants must have certification from Justice Department officials that the target of surveillance is either a foreign power or the agent of a foreign power. These applications are heard by federal judges who serve on the court on a rotating basis.

All hearings and decisions are conducted in secret. The public disclosure of the court’s activities is limited to two sets of statistics sent annually to Congress — applications for surveillance or physical searches, and applications for business records.

According to the most recent letter, about 98 percent of the 1,856 applications for surveillance and searches in 2012 were approved outright, with one withdrawn and 40 others modified. In addition, the government made 212 application for business records. The government modified 200 of these applications, but none was denied.

The White House says the statutes governing the court, combined with Congress’ oversight role, provide checks and balances that come as close to transparency as national security needs permit. And experts say there are good reasons for this secrecy.

“If we required that the public be permitted to take a peek at these classified proceedings, we’d be giving that information to foreign powers and terrorists as well,” said Molly Bishop Shadel, a University of Virginia law professor who once worked for the Justice Department representing the United States before the surveillance court.

Instead, Shadel said, “we require transparency in the form of giving other parts of the government — the judicial and legislative branches, who have different interests and different perspectives from the executive branch — the power to peek at those classified proceedings.”

Still, is Obama justified in calling the kind of disclosure the court makes “transparency”? We asked experts on secrecy and public access, and most agreed that Obama is wrong to take credit for any reasonable degree of “transparency” in the court’s operations.

“We typically don’t see the court’s opinions interpreting the Constitution or FISA, or its orders directing the government to do or refrain from doing particular things,” said Nathan Sales, a law professor at George Mason University. “On occasion, parts of the court’s opinions will be declassified and released to the public, but this is the exception to the rule. The FISA court certainly serves as an important check on the executive branch, but — usually — it’s not accurate to call the court ‘transparent.’ “

Jim Harper, the director of information policy studies at the libertarian Cato Institute, agreed.

“I don’t know of any plausible meaning of ‘transparent’ that encompasses the ‘oversight behind closed doors’ concept,” he said.

Freedom of Information advocates seconded this view.

“Checks and balances may be related, but they are not the same thing as ‘transparency,’ ” said Kenneth F. Bunting, executive director of the National Freedom of Information Coalition. “A court system that has proceedings that are secret and makes secret rulings that are often based on secret interpretations of law cannot fit my definition of the word ‘transparent.’ “

Our ruling

Obama said the Foreign Intelligence Surveillance Court “is transparent.” We don’t doubt that there are good reasons for secrecy at the court, but if you’re going to operate a mostly secret court, you don’t get to crow about how “transparent” it is. We rate his claim Pants On Fire.