Merkley Asks Administration to Declassify Secret Court Opinions on NSA Programs
WASHINGTON – Oregon’s Senator Jeff Merkley is asking the Obama administration to make public secret court opinions that include significant findings about the legal scope of the NSA surveillance programs. These court opinions are currently classified and thus kept secret from the American people, limiting public debate around the laws that authorize surveillance programs.
In a letter, Senator Merkley makes the case that public disclosure of significant court opinions is critical to a full public debate:
“Recently disclosed documents have raised profound questions about the reach of surveillance programs into the lives of every American. It is therefore imperative that we discuss the value and efficacy of these activities, as well as the safeguards for Americans’ privacy that the law provides,” wrote Merkley.
“Yet it is incredibly difficult, if not impossible, to have a full and frank discussion about this balance when the public is unable to review and analyze what the executive branch and the courts believe the law means.”
The text of the laws that authorize surveillance is public information, but the decisions of the Foreign Intelligence Surveillance Court (FISC) that decide how broadly the law permits surveillance to be used are kept secret. There can be large differences between what the text of the law appears to authorize and what the court’s interpretation authorizes. Last week, Senator Merkley questioned NSA Director Keith Alexander on that subject at a Senate hearing, where Alexander expressed support for the idea of declassifying the significant FISC opinions.
Senator Merkley is also the author of a bipartisan bill that would require the FISC to open more information to public debate by declassifying significant opinions.
The full text of the letter follows below and a pdf is available here.
June 19, 2013
The White House
Washington, D.C. 20500
Dear President Obama:
I was heartened by the comments you made on June 7 inviting the public to engage in a constructive dialogue about the surveillance programs that have been operating under legal authority pursuant to Sections 501 and 702 of the Foreign Intelligence Surveillance Act (known respectively as the USA PATRIOT Act and the FISA Amendments Act of 2008). Recently disclosed documents have raised profound questions about the reach of surveillance programs into the lives of every American. It is therefore imperative that we discuss the value and efficacy of these activities, as well as the safeguards for Americans’ privacy that the law provides.
Any healthy democracy should periodically re-examine the tension that exists between ensuring the safety of our communities and the transparency of government efforts to ensure that safety. It is the responsibility of Congress to attempt to strike the right balance by establishing appropriate safeguards in law.
Yet it is incredibly difficult, if not impossible, to have a full and frank discussion about this balance when the public is unable to review and analyze what the executive branch and the courts believe the law means. Many have expressed surprise and confusion about how the publicly reported collection of metadata on virtually every phone call made in the U.S. could fall under the authority to collect things that are “relevant to an authorized investigation,” the standard established by the PATRIOT Act.
Because of the highly classified nature of opinions issued by the Foreign Intelligence Surveillance Court (FISC), Members of Congress cannot publicly discuss, let alone debate, the way that the executive and judicial branches are interpreting the law. And without disclosing and debating the interpretation of the law, it is a fruitless exercise to debate whether and how to change laws which we are periodically asked to reauthorize.
In order to support a public discussion about these issues, I ask that you declassify opinions issued by the FISC and the Foreign intelligence Surveillance Court of Review that contain significant construction or interpretation of law. If declassifying the full opinions would compromise sensitive sources and methods used by our intelligence community, then I urge you to release public summaries of legal interpretations contained in these opinions. While debating the laws that govern our intelligence gathering programs has never been easy, we must be able to publicly discuss what the law means in order to protect and promote our most cherished values.
Jeffrey A. Merkley
United States Senator