Seeking to drag the shadowy world of U.S. national security law into the light, a bipartisan group of senators has proposed a bill that would declassify significant legal opinions reached by the Foreign Intelligence Surveillance Court. The court is charged with approving intelligence agency requests for surveillance on suspected foreign agents.
It was a leaked FISA court order pertaining to the recently revealed records request on millions of Verizon customers from the National Security Agency (NSA) under Section 215 of the Patriot Act that ignited the firestorm over domestic surveillance in the name of national security in recent weeks. The senators’ proposal would force the court to make public its thinking on Sec. 215.
The proposal is led by Oregon Sen. Jeff Merkley and Utah Sen. Mike Lee, both of whom have repeatedly argued for such disclosures to the public. Merkley has charged that the court’s decisions amount to “secret law,” because they are not available to the public, yet effectively determine the extent of government authority when it comes to surveillance.
“We certainly expect that the disclosures about ongoing surveillance programs over the past week will lead senators to think again about whether these critical court opinions should remain secret,” said Jamal Raad, a spokesperson for Senator Merkley.
The bill is based on Merkley’s past proposal to declassify important FISA court opinions. He is joined by a small bipartisan group of senators that includes Democratic Sens. Patrick Leahy of Vermont, Ron Wyden of Oregon, Jon Tester of Montana, Mark Begich of Alaska, and Al Franken of Minnesota. Republicans joining the effort include Lee and Dean Heller of Nevada.
A handful of senators, including Wyden and Udall, had earlier warned that the Patriot Act was being interpreted in a more expansive manner than was publicly known. Several lawmakers have now said they were unaware of how broadly some Patriot Act powers were being interpreted, but warnings from Wyden and Udall, as well as a prior legislative attempt by Merkley to declassify the FISA court opinions, suggests that lawmakers who weren’t informed chose not to be—either by not attending classified briefings or by voting down efforts to make the scope of government surveillance public. (Access to knowledge about the NSA’s Prism program appears to have been more circumscribed).
“It is more crucial than ever to know the legal holdings of the FISA court,” said Michelle Richardson, an attorney with the American Civil Liberties Union. “Since it is authorizing the collection of information on wholly innocent Americans, Congress should no longer trust that it is make decisions in the interest of privacy and the Constitution.”
The proposal will test whether or not the recent disclosures about the NSA have cracked the strong base of bipartisan support for expansive surveillance laws in Congress, and how deep recent criticism of the Obama administration goes. In December, a majority of senators voted down Merkley’s proposal to declassify FISA court opinions that reach conclusions about the scope of surveillance law.
The bill’s supporters are hopeful the dynamic has changed. “The last minute rush [last year] during the FISA reauthorization debate created pressure in the Senate to pass a clean house bill without any changes,” says Raad. “This time around, there’s no looming deadline.”
The Justice Department will retain significant leeway to prevent the disclosure of classified opinions even if the bill succeeds. Under the proposal, the attorney general can offer a declassified summary rather than an opinion if they believe declassifying an opinion would harm national security. The attorney general can block even a summary from being made public as long as the office can justify the decision to Congress.
Although the Republican and Democratic leadership has largely backed up the Obama administration on the recent surveillance revelations, the president has come under harsh criticism from some legislators.
Republican Sen. Ted Cruz of Texas, who was only sworn in last January and has not yet had the opportunity to vote on the Patriot or FISA Amendments Acts, said the revelations about the NSA fit “into a troubling pattern” of the Obama administration “disregarding the Bill of Rights.”
Those critics will now have an opportunity to show whether their opposition is to excessive secrecy and surveillance, or just to the man in the White House.
Sen. Merkley discusses the new bill with Rachel Maddow in the video below.
Adam Serwer