Professor Cole while acknowledging secrecy is sometimes necessary, ticks various boxes about the extent to which a degree of forced transparency has had a subsequent restraining influence on US policy and programs, but needs to go further:
We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed. Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.Australian readers might ponder the situation here in light of this Business Insider list in June 2014 of what the world learned in a year of Snowden leaks.
We had or are having something of a debate about the powers given to Australian security services, metadata and data retention.
But as Martin Place and Paris are sure to raise questions about the need for ever more information about all of us in the search for the deranged, driven and malevolent, let's plug for Professor Cole's full and fair debate.
Something we missed here following revelations for example about Australian involvement in those drone strikes and the PRISM and XKeyscore programs, spying on our friends and in this case their lawyers, the shared arrangements we have entered into to pool information about citizens, and who here in government let alone the rest of us knows what is going on.
More from Professor Cole here:
As has often been said, sunlight is the best disinfectant. Because secrecy has been so central to these programs, transparency makes a critical difference in how they are conducted. All drone-monitoring groups agree that the number of drone strikes and the ratio of reported civilian casualties fell dramatically as the US became more transparent about its use of remotely controlled weapons.
With respect to the NSA’s domestic phone surveillance, all three branches of the US government changed their tune once Snowden disclosed the program. One of the government’s most frequent defenses of the program was that all three branches had approved it. But that was true only as long as the program remained under wraps. Once it became public, President Obama, who had allowed the program to continue in the form his predecessor had left it, appointed an expert review panel, and endorsed several of the reforms it suggested. He agreed, for example, that the NSA should be required to obtain judicial approval before every search of its telephone database; that those searches should be more limited in scope; and that a public advocate should participate in hearings before the Foreign Intelligence Surveillance Court. Another executive branch body, the Privacy and Civil Liberties Oversight Board, launched an investigation and determined that the domestic telephone metadata program was unauthorized by statute.
The courts, which had repeatedly authorized the NSA’s domestic phone metadata program while it was secret, also changed their approach once it became public. A federal district court in Washington, D.C., declared that the program was likely unconstitutional. The Foreign Intelligence Surveillance Court itself, which had routinely rubber-stamped the official collection of metadata while it was secret, without even writing an opinion explaining its reasoning, wrote an opinion to explain its rationale only after the program was publicly revealed. And that court, which previously kept all its opinions secret, has now released many of its opinions so that they can be publicly assessed.
Congress, which had repeatedly reauthorized the USA Patriot Act provision that the NSA relied on to conduct its domestic phone data program, also altered course once the program was public. The House of Representatives overwhelmingly passed the USA Freedom Act, a bill designed to rein in the NSA by, among other changes, authorizing more limited access to phone metadata and allowing privacy advocates to participate in Foreign Intelligence Surveillance Court hearings. Senator Pat Leahy improved the bill in the Senate, and obtained agreement from the administration to further reforms. These included ending bulk collection of phone data, requiring judicial review before any phone data is demanded, and imposing tougher reporting requirements.
In a major disappointment for privacy advocates, that bill fell two votes shy of the sixty needed to overcome a filibuster in the Senate’s lame-duck session. Some of the objecting senators felt the reforms did not go far enough, but others were reluctant to tie the NSA’s hands too tightly in light of recent threats, such as ISIS—even though the executive branch said it could operate effectively under the proposed reforms. But there was still a bipartisan majority for reform.
The new Senate will be less sensitive to civil liberties. Mitch McConnell, the new Senate leader, is an ardent opponent of NSA reform, as is Charles Grassley, who will succeed Leahy as chair of the Senate Judiciary Committee. But the statute upon which the phone metadata program rests expires in June 2015, so reformers will be in a position to demand meaningful limits as the price of extension. The Republicans will have to agree to some reforms if they want the authority to continue.
Disclosures about NSA spying have also changed the actions of Silicon Valley corporations, major forces in the surveillance debate, both because the government needs their cooperation and because they are a substantial part of the US economy. Their business interests have been hurt by the worldwide perception that they were going along with, or at least were too easily exploited by, the NSA. So they are now squarely behind privacy reforms. That, too, offers hope for the future.
Finally, transparency is important to the government. If it keeps programs of this nature secret, the public will understandably fear the worst. The long-unacknowledged drone killing program led many people to believe that the US claimed the power to kill anyone, anywhere, without process or standards. As the Obama administration began to explain its drone policy, it became clear that it did not take such a capacious view of its authority. The president has said that targeted killing away from a conventional battlefield is limited to imminent threats who cannot be captured or otherwise countered, and will be undertaken only where the risk of civilian casualties is virtually nil. But as long as the program and its contours were secret, people lacked clear reasons not to fear the worst.
For these reasons, Sir David Omand, former head of GCHQ, has recently recommended greater transparency about the UK’s policy on drones and intelligence sharing precisely because candor is necessary to counter misinformed opposition and legitimize drones’ beneficial uses.
In response to recent announcements that Apple and Google have built into their new cell phones a default encryption that the companies themselves cannot decode, FBI Director James Comey and GCHQ head Robert Hannigan have expressed concern that important information will not be available and called for public debate on terrorism and technology. It is disappointing, if not surprising, that they see a need for public debate only when new technologies may impair their ability to monitor us, and not when such technologies enhance their monitoring. A public debate is needed, but it cannot proceed without the kind of transparency that thus far the security agencies have obdurately resisted.
Of course, transparency has costs as well as benefits, and secrecy is sometimes necessary. But secrecy has significant costs, too—not just to human rights, but to democracy itself. As US Court of Appeals Judge Damon Keith warned in 2002, in a case involving secret immigration trials, “Democracy dies behind closed doors.” We won’t have a chance to arrive at defensible policies on surveillance and targeted killing if the questions are not fully and fairly debated. When the balance between individual rights and security is struck in secret one-sided determination, as has been the case with both drone killing and electronic surveillance, as well as the CIA’s enhanced interrogation program, it will inevitably be skewed.
Increasingly, our governments seem to be insisting that our lives be transparent to them, while their policies remain hidden from us. For the sake of democracy itself, we must do all we can to resist that impulse.
—December 10, 2014