Bill introduced to declassify opinions of secret court behind ordering all U.S. phone records from Verizon

By End the Lie

Sen. Jeff Merkley (D-Ore.) in 2011 (Image credit: Shirley Li/Medill DC/Flickr)

Sen. Jeff Merkley (D-Ore.) in 2011 (Image credit: Shirley Li/Medill DC/Flickr)

A bipartisan group of senators has proposed a bill that would declassify the opinions of the highly secretive Foreign Intelligence Surveillance Court, the same body that ordered Verizon to hand over all U.S. phone records for a three month period.

Yet there are major problems, as you will see below.

Previous efforts to withhold court opinions

The legislation, which is sponsored by a group of senators led by Sen. Jeff Merkley (D-Ore.) and Sen. Mike Lee (R-Utah), is quite noteworthy because the Obama administration has fought tooth and nail against efforts to declassify Foreign Intelligence Surveillance Court rulings.

Still, senators have urged the administration to declassify the rulings or even summarize the opinions with no success thus far.

When the Electronic Frontier Foundation (EFF) attempted to obtain summaries of the Foreign Intelligence Surveillance Court’s opinions which were supposedly given in whole to Congressional intelligence committees, they were given pages of wholly redacted files.

All this despite the fact that the government admitted last year that on at least one occasion the court found that surveillance breached the Fourth Amendment.

“Secret law”

The legislation is called the “Ending Secret Law Act,” according to a document signed by Merkley and uploaded by Politico.

This title may have been given since Merkley has previously referred to the Foreign Intelligence Surveillance Act (FISA) as a secret law in a Senate session. Sen. Ron Wyden (D-Ore.) has also called it a “secret law.”

Others joining Merkley and Lee include Wyden, Sens. Patrick Leahy (D-Vt.), Dan Heller (D-Nev.), Mark Begich (D-Ala.), Al Franken (D-Minn.), Jon Tester (D-Mo.), according to a press release.

Merkley has used this terminology because some of the court’s opinions actually contain “a significant interpretation of a public statute,” as the EFF has put it, which means that there is a secret interpretation of publicly available law.

“Because a court’s opinion constitutes the ‘law,’ refusing to disclose those opinions to the public results in ‘secret law,’” the EFF explained earlier this year.

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” Merkley said.

“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’ communications should be permitted without ending secret law,” he added.

Problem supporters

Unfortunately some of the senators behind the bill are far from consistent.

Leahy, for instance, isn’t what one would call a privacy champion (or all that dependable). Begich was a supporter of indefinite detention.

Franken notably recently defended the National Security Agency’s massive formerly secret surveillance program by saying, “I can assure you, this is not about spying on the American people.” Franken said he “was very well aware of” the surveillance programs since 2009.

“I have a high level of confidence that this is used to protect us and I know that it has been successful in preventing terrorism,” Franken said.

Problematic legislation

The reason these types might be backing this type of legislation is because it actually seems to lack any and all teeth.

The bill would “require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretations of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States and for other purposes.”

Notice how it says “unless such disclosure is not in the national security interest of the United States”? Well, the Obama administration has already said that disclosing a secret court opinion related to the FISA Amendments Act could likely cause “exceptionally grave and serious damage to the national security.”

Why would this be any different?

Also obviously problematic is the “and for other purposes” language. That opens the door to any excuse under the sun.

Yet it does include some admirable statements such as, “Secret law is inconsistent with democratic governance. In order for the rule of law to prevail, the requirements of the law must be publicly discoverable.”

However, given the above language, it seems this particular piece of legislation is going to lack the strength one might have hoped for.

That being said, it is almost certainly better than nothing.

EPIC’s recommendations

Last year, the Electronic Privacy Information Center (EPIC) stated in testimony before the House Judiciary Committee that Foreign Intelligence Surveillance Court opinions should be published before the FISA Amendments Act was renewed.

On June 7, 2013 EPIC Executive Director Marc Rotenberg, National Security Counsel Jeramie D. Scott and Appellate Advocacy Counsel David Brody penned a letter recommending additional measures.

In the letter, sent to members of the House and Senate judiciary and intelligence committees, they stated, “The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order.”

They further called on the House and Senate to, “Immediately hold oversight hearings to determine whether the Foreign Intelligence Surveillance Court exceeded its legal authority when it authorized surveillance of solely domestic communications.

“Instruct the Inspector General of the Intelligence Community to investigate domestic surveillance under the FISA and Patriot Act and produce a public, unclassified report of his findings,” they continued in their recommendations.

They also called on the House and Senate to publish “all substantive legal interpretations of the FISA and Patriot Act, specifically sections 215 and 702” along with all “past orders and opinions of the Foreign Intelligence Surveillance Court interpreting the FISA and Patriot Act.”

On a related front, there is the encouraging fact that a court ruled that the Department of Justice can no longer claim that the rules of the Foreign Intelligence Surveillance Court prohibit disclosure of a particular opinion to the EFF under the Freedom of Information Act. It remains to be seen if this will actually change anything.

I’d love to hear your opinion, take a look at your story tips and even your original writing if you would like to get it published. Please email me at [email protected]

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