Merkley: We Must Put an End to “Secret Law”

Washington, DC– Today, during debate of the reauthorization of the Foreign Intelligence Surveillance Act (FISA) Amendments of 2008, the Senate failed to pass a bipartisan amendment authored by Oregon’s Senator Jeff Merkley that would put an end to “Secret Law.” Specifically, the amendment would declassify significant FISA Court opinions, allowing Americans to know how our government is interpreting the plain language of the law.

“We must put an end to ‘Secret Law,’” Merkley said. “In order to have a full debate on the extent of powers granted to our national security agencies in post-9/11 laws, such as the Patriot Act and the FISA Amendments, we must have transparency in how those laws are interpreted by the courts. An open, democratic society like ours should not be governed by secret interpretations of laws.

“Today’s vote fell short today largely because of the argument that the Senate needed to pass the House version of the bill without amendment to meet the January 1 deadline. I am heartened, however, that Intelligence Chair Dianne Feinstein stated her support for including this provision in next year’s Intelligence Authorization.”

The Foreign Intelligence Surveillance Court (FISC) is a U.S. federal court authorized to oversee 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 can be quite different from a plain reading of the law passed by Congress, and such interpretations can be as influential in determining the extent of the government’s surveillance authority as the statutory language. There is certainly information included in the Court’s orders and rulings that is necessarily classified, particularly information related to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations of what the law means should be made public.

The Amendment was cosponsored by Senator Mike Lee (R-UT) and Senator Ron Wyden (D-OR), and endorsed by the Federation of American Scientists, the American Association of Law Libraries, The Constitution Project, the Liberty Coalition, the American Civil Liberties Union, the Project on Government Oversight (POGO), the Government Accountability Project, and the Competitive Enterprise Institute.