A member of the US Secret Service looks out from the roof of the White House in Washington April 11, 2010. REUTERS/Richard Clement (UNITED STATES—Tags: POLITICS)
With backing from the the American Civil Liberties Union, the Project on Government Oversight (POGO), the American Association of Law Libraries, The Constitution Project and open-government groups, eight Democratic and Republican senators have introduced legislation that would end the “secret law” governing controversial government surveillance programs.
The measure, coming amid daily revelations about the extent to which the National Security Agency is monitoring communications by Americans, would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions. The senators say the move would allow Americans to know how broad of a legal authority the government is claiming to spy on Americans under the Patriot Act and the Foreign Intelligence Surveillance Act (FISA).
“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” explains Oregon Senator Jeff Merkley, a Democrat who has been an outspoken advocate for congressional oversight of surveillance programs. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies. We can’t have a serious debate about how much surveillance of Americans’s communications should be permitted without ending secret law.”
Merkley’s co-sponsors include Senate Judiciary Committee chairman Patrick Leahy, a Democrat from Vermont, as well as Senators Dean Heller, a Republican from Nevada; Mark Begich, a Democrat from Alaska; Al Franken, a Democrat from Minnesota; Jon Tester, a Democrat from Montana; and Ron Wyden, a Democrat from Oregon.
The senators explain: “The Foreign Intelligence Surveillance Court (FISC) is a special US federal court tasked with authorizing requests for surveillance both inside and outside the United States. Because of the sensitive nature of these requests, the FISC is a “secret court.” The FISC rulings, orders, and other deliberations are highly classified. The Court’s rulings can include substantive interpretations of the law that could be quite different from a plain reading of the law passed by Congress, and such interpretations determine the extent of the government’s surveillance authority. There is certainly information included in the Court’s orders and rulings that is necessarily classified, related to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations of what the FISC says the law means should be made public.”
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Alex Abdo, staff attorney with the ACLU National Security Project, which has for a number of years been raising concerns about the FISA court, sees an opening for legislative oversight that has been missing for so long.
“The ultimate check on governmental overreach is the American public,” says Abdo. “For years, the government has secretly relied on sweeping interpretations of its surveillance powers, preventing the very debate it has now belatedly invited on the wisdom and legality of those powers.”
Leahy’s embrace of the initiative is especially significant.
The Judiciary Committee chair’s willingness to step up as a cosponsor of this proposal offers a sense of frustration, even among key players in the Congress, with NSA secrecy—and, frankly, with the failure of the House and Senate to respond effectively, at least to this point, to privacy concerns that have been raised repeatedly since the enactment of the Patriot Act in 2001.
“For years, I have pressed for information about the business records program authorized by the Patriot Act to be declassified,” says Leahy. “I am proud to join in this bipartisan legislative effort to increase openness and transparency so that we can shed further light on the business records program authorized by this law.”
John Nichols is the author (with Robert W. McChesney) of the new book Dollarocracy: How the Money and Media Election Complex Is Destroying America, which outlines a reform agenda that calls for establishing a guaranteed right to vote, getting corporate money out of politics and opening up the political proces.
Take Action: Help End the 'Secret Law' Behind Government Surveillance
