Barack Obama

Obama's DOJ Refuses to Confirm Existence of Legally Required Surveillance Reports


Exactly how open and transparant is the Obama administration? Earlier this summer, Cato Institute researcher (and Reason contributing editor) Julian Sanchez decided to find out. In June, he filed a Freedom of Information Act (FOIA) request for the release of the Justice Department's semi-annual reports on how the government is implementing the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act surveillance law, which gives the National Security Agency sweeping — and highly secretive — power to conduct warrantless electronic surveillance on Americans. 

Those reports, which are delivered to Congress, are required by law. And, following a legal battle with the American Civil Liberties Union (ACLU), redacted versions of those reports issued up through May 2010 have already been made public. With a possible reauthorization of the law set for the end of the year, Sanchez thought it would helpful to see more recent versions of those reports, even if only in highly redacted form. Yesterday, after waiting for more than two months, he finally got his (non) response: Those reports are classified, so the DOJ's Office of Intelligence (ha-ha) refuses to even confirm or deny that the reports exist. 

Here's the relevant text from the response

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

We know these reports exist. They're required by law. We've seen versions of these reports in the past. These reports, even in heavily redacted form, have provided the public with some of the fairly small information the public has on how the government is using its warrantless spying powers. 

Which is why this looks less like a useful response and more like an attempt to delay and evade the question. As Sanchez writes, "It's almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it's too late for the documents to be relevant to the debate over the FAA." In other words, the DOJ doesn't want to talk about it. 

They're not the only ones. There was a time just a few years ago when Democrats fought the Bush administration over its expansion of warrantless surveillance powers, when presidential hopefuls like Sen. Chris Dodd swore to use every possible trick and tool to oppose the White House's plans, and when a young Obama  welcomed his senior staff to thw White House with a promise that "transparency and the rule of law will be the touchstones of this presidency." 

But now, under Obama, who criticized Bush's security state but has also danced carefully around many of the issues raised by warrantless surveillance, the law looks headed toward near-certain reauthorization. Which is exactly what the White House wants. Reauthorizing the FISA Amendments Act is the Obama administration's stated "top intelligence priority." 

And it'll likely happen with minimal discussion and widespread, bipartisan support. Indeed, there seems to be an ongoing effort to prevent substantive public discussion of the policy: Sens. Ron Wyden and Mark Udall, both Democrats, have asked the Director of National Intelligence for additional information about various spying activities. The response? "It is not possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA." The DOJ's latest dodge doesn't tell us much that's new, but it does remind us, once again, how open and transparent the administration is willing to be about its warrantless spying activities: Not very.

NEXT: Gene Healy on 9/11 and Its Legacy of Fear

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  1. “We know these reports exist. They’re required by law.”


  2. There is a recurring theme of people attempting to ascribe human personality traits to kkkorporations; sociopath, psychopath, and such.

    I hereby ascribe to the government, this current government in particular, the petulant, stubborn tantrum-throwing of a spoiled three year old. If only they really would hold their collective breath until they turned blue, they might fall out of the high chair and die of a skull fracture.

  3. I always feel like somebody’s watching me.

    1. just cause ur paranoid doesnt mean ur wrong

    2. Tell me it can’t be

    3. And I have no privacy

  4. American politics have become such a convoluted mess.

    So, I guess the left is praising the Obama Administration because of its lack of transparency now?

    So, when do conventional conservatives start bashing the Obama administration for doing all the same things Bush Jr.’s administration used to do?

    Maybe if Obama wins reelection, the transformation of the GOP into becoming more like a libertarian opponent to progressives will continue–there’s gotta be a pony in all this shit somewhere.

    1. I know politicians generally have no principles, but why their supporters and voters accept that to the extent of shedding their principles as well, I have no idea.

      1. Because they have no principles, and TEAM comes first?

        1. That explains what happens, but I want to know why. If you subsume your identity and values into something awful like a political party. . .well, what’s the point of doing that?

          1. I honestly can’t answer that, ProL. Maybe you should ask a partisan.

            1. Please, can a partisan answer this question? Why do you defer your principles to people who have none? Is it a religious thing? Because that’s what I’m reminded of.

              1. It’s like any sort of group thing, including sports team allegiance.

                Some people do the “lesser of two evils” approach, and judge the out group harsher than the in group.

                But in-group versus out-group thinking is a commonality in most people.

              2. ProL, it’s “fan” behavior.

                Ever seen a sports fan in a stadium? The excitement of winning takes over the person. I guess the adrenaline rush causes a certain loss of reasonability (drink). Not too different than gang behavior; all that’s important is winning, whether it requires murder/rape/whatever.

                The readiness with which they abandon their principles shows just how much they value their own morals in the first place. I don’t know whether this is merely a result of organized religion (read: morals inherited with no understanding of their value) or just because they lack a basic understanding of morals in the first place.

                1. If the Bucs started calling in drone strikes on other teams during games, I would object.

                  1. And they’d still lose!

                    1. They won Sunday, holding their opponent to ten yards rushing. How did the Seahawks do?

                    2. Well, at least the Giants wo…the Giants won the Superbowl last year!

                    3. Losing to the Cowboys is treason. Legally speaking, I mean.

                  2. Uh, don’t you remember that NFL thing not too long ago?

                    Not a sports fan so I have no clue what teams it involved, but it involved bonuses for removing an opponent from the game via injury.

                    I’m sure if they could get away with drone strikes, they would.

                    1. And look how Saints fans responded. Not with, “That’s terrible, we deserve punishment” but with “We’ve been wronged!”

                      They at least have a little argument about the process, but the same crap is happening at Penn State, which should feel fortunate to still be a university.

                    2. Yeah, I’m not defending the behavior as rational. I’m saying sick shit happens when you have teams with fans.

                  3. ProL: See Sandusky and the behavior of PSU fans who would probably join a lynching of any other man in Pennsylvania accused of the same. Its tribal. He may be a child-rapist, but he was their child-rapist. Most people who hang out here just aren’t wired for that. That’s why we aren’t TEAM players.

              3. It’s because of this:

          2. That explains what happens, but I want to know why. If you subsume your identity and values into something awful like a political party. . .well, what’s the point of doing that?

            For most people it’s about aesthetics and identity!

            They vote for one party over the other for the same reason they’re Catholic, true…it’s part of their identity.

            Marketers play on that all the time. That’s how commercials sell beer during football games. Do you want to be like the doofus? Do you want to be the guy with the girl? Who do you want to be?

            It’s basically aesthetics for more than half the partisans out there. There’s very little substantive difference between Barack Obama and George W. Bush, but the partisans on either side hate, hate, hate, the other guy’s man!

            If that isn’t about policy, it must be about aesthetics and group identity.

            That’s why they do it.

            Someday, if libertarians ever get big enough to really make a difference, it’ll be becasue Postrel’s writing on the under-appreciated importance of aesthetics has become a part of the libertarian canon.

          3. Ray-Ban has his own justification for his purchase (“I like it”) against the interpretations of theorists who insist an interest in surfaces is linked with deception, status or falsehood. Postrel’s apt example of the proliferation in toilet-brush design is an effective rebuttal against such theorists-after all, nobody buys a sleek toilet brush to impress neighbors who will never see it, so aesthetics must constitute much of the rationale.


            That’s from a review of Postrel’s “The Substance of Style”.

            Take the observation about toilet brush design and apply it to politicians.

            When words like “libertarian” and “capitalism” are beautiful to more people, we’ll live in a more libertarian and capitalistic world.

            If we want Barack Obama to lose, we need to show everyone how ugly he is. That isn’t about policy, exactly. Most of us here aren’t very good at showing people how ugly Obama is. Some of us only end up making ourselves look ugly when we’re trying to criticize Obama!

            Some of my fellow libertarians are offended by the suggestion that we should worry about whether other people perceived libertarians as ugly or beautiful, too. We should probably work on that part, first.

      2. supporters only care about winning. The anti-war left, a fixture of the Bush years, says nothing about drones and killing Americans. The rights talks about cutting spending, hoping no one will remember its 5T contribution to the debt.

        1. Of course, the massive fallacy in this kind of thinking is that a win for the party is rarely a win for the country or for individual voters.

          1. the massive fallacy in this kind of thinking is that a win for the party is rarely a win for the country or for individual voters.

            I’d say that’s an axiom and not a fallacy, but I think I know what you meant to type.

        2. They do, actually, it’s just that only a tiny fraction of those criticizing Bush for war/civil liberties actually constituted the anti-war left.

      3. Because they’re all convinced that the other side is evil incarnate, and must be stopped at all costs, even if that means constantly electing shitty candidates. Just ask Tony or any of the HitanRunpublicans

    2. It’s really not all that convoluted if you bear in mind that party trumps principle.

    3. there’s gotta be a pony in all this shit somewhere.

      I laugh at your optimism.

      For every person that learns how hard it is to make money and sustain theirself, it seems as though there are always 2 more with a hand out expecting someone to give them something for nothing.

    4. nah, if Obama wins, the Repubs will even go further “right”, just as the Dems went further “left” after ’00 and ’04.

      * and by right/left, I mean further and further away from freedom.

  5. the transformation of the GOP into becoming more like a libertarian opponent to progressives will continue

    I admire your starry eyed optimism, I think.

  6. the lack of transparency is mentioned as though that means something. Red and Blue are covered by the DC steno pool in different ways. For instance, no one asks where the peaceniks are when a Blue POTUS targets American citizens or uses drones daily. The anti-war left is only visible during Red administrations. Likewise transparency; it is only an issue when Red is opague.

    Neither side is covered in glory here. The imperial presidency is more the rule than the exception and there is no reason to think that would change if Romney wins. No branch ever gives back power.

    1. Seems like Congress is fine with giving up power, actually.

      1. for examples – the history of Rome

  7. Wow, really. Why didnt I ever think of that dude.

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