In the wake of NSA whistleblower Edward Snowden’s disclosure of a secret court order authorizing indiscriminate mass domestic surveillance, calls for greater transparency are being heard not only from the public but from leading politicians as well. A bipartisan group of senators, for example, is sponsoring legislation to force the government to disclose cases decided by the Foreign Intelligence Surveillance Court (FISC or FISA Court) that include a “significant legal interpretation” of the Patriot Act or the Foreign Intelligence Surveillance Act unless there is a national security reason to withhold them.

The FISA Court, which is the body of judges that approves secret government requests to wiretap or otherwise spy on Americans under the Patriot Act or the Foreign Intelligence Surveillance Act, however, wants to keep functioning without any additional public knowledge or oversight of its activities, according to a letter written by its chief judge, Reggie B. Walton.

Responding to a February 13 letter from several senators, Walton made several arguments against releasing either redacted opinions or even specially written summaries of them. Contending that declassifying and releasing full FISC opinions would be impossible, Walton argued that classified facts and legal analysis “are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning.”

Less persuasively, Walton argued that the “fact-intensive nature of FISC opinions” would not allow many cases to be written in such a way that separates classified facts from legal analysis, despite the fact that federal administrative law judges in areas like Government Contracts write opinions in this fashion all the time. Walton also claimed that releasing case summaries would be worse than releasing nothing at all, because “the summary is much more likely to result in misunderstanding or confusion regarding the court’s decision or reasoning.” As George Orwell put it in his dystopian novel 1984, “Ignorance is strength!”

For 35 years, the FISC has acted in complete secrecy:  government requests for surveillance are sealed, only the government is allowed to participate in hearings, and the court’s opinions—which have the force of law—are kept from the public as well. As a result, the FISC has created a corpus of secret law pertaining to vital constitutional issues like the Fourth Amendment and the right to privacy—despite the fact that political thinkers from Plato on down have universally concluded that laws must be public in order to be legitimate.

The senators sponsoring the “Ending Secret Law Act” include Jeff Merkley (D-Oregon), Mike Lee (R-Utah), Dean Heller (R-Nevada), Pat Leahy (D-Vermont), Mark Begich (D-Alaska), Al Franken (D-Minnesota), Jon Tester (D-Montana), Ron Wyden (D-Oregon), Richard Blumenthal (D-Connecticut), and Rand Paul (R-Kentucky). The group released a statement explaining that while “there is certainly information included in the Court’s orders and rulings that is necessarily classified…the substantive legal interpretations of what the FISC says the law means should be made public.”

The fact than Sen. Leahy—the Senate’s most senior member, its president pro tem and Chairman of the Judiciary Committee—is a cosponsor strongly suggests that the effort is not a back bench rebellion, but instead is backed by party leaders frustrated with the secrecy so rampant in Washington since the attacks of September 11, 2001.

-Matt Bewig

To Learn More:

Secret Court Resists Releasing Surveillance Opinions (by Angela Canterbury and Aimee Thomson, POGO)

Senators: End the Secret Law that Frames Surveillance Programs (by John Nichols, The Nation)

S. 1130: Ending Secret Law Act (Bill text)

Judicial Oversight of U.S. Spying Rests with One Man…John Roberts (by Noel Brinkerhoff, AllGov)

Foreign Intelligence Surveillance Court Sides with Challenge to Secrecy of Obama Surveillance Details (by Matt Bewig, AllGov)