The Senate's Push for a Secret Court's Secrets Can Only Tell Us This Much

"I welcome this debate," President Obama said of the NSA revelations. But with swaths of the security state still shrouded by classification, open debate is hard to come by. Which is why a group of senators introduced a bill Tuesday to expose at least one element of those measures to a little more openness. Will it work? Can anything? That might come down to the word "terrorist."

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"I welcome this debate," President Obama said on Friday of the NSA revelations, "and I think it's healthy for our democracy." That prompted an article in rebuttal from The New York Times: "Debate on Secret Data Looks Unlikely, Partly Due to Secrecy." With swaths of the security state still shrouded by classification, the president and his allies have a distinct advantage in the debate, summarized primarily by the word "terrorist."

Which is why a bipartisan group of senators introduced a bill today that would expose at least one element of those security measures to a little more openness.

Last month, well before The Guardian released classified documents outlining the government's collection and management of private information, we reported on a somewhat obscure legal filing by the Electronic Frontier Foundation. That filing asked a federal court known as FISC (Foreign Intelligence Surveillance Court), to determine whether or not its rules exempt its decisions from Freedom of Information Act requests. But the end result of that filing would potentially be the release of an FISC ruling — a single document from a secret court, after several face-saving declassifications from the president and the Director of National Intelligence — that determined the government had violated citizens' Fourth Amendment rights in its electronic data collection.

It would potentially end in the release of that document. It's not likely that the court, which operates in such deep secrecy that the EFF didn't even know how to submit its filing, would do so eagerly. And knowledge of the ruling's existence at all is something of an accident, coming to light only in the response to a letter sent by Senator Ron Wyden of Oregon to the intelligence director, James Clapper.

Now Wyden and six other senators — Lee of Utah, Leahy of Vermont, Heller of Nevada, Begich of Alaska, Franken of Minnesota, and Tester of Montana — have introduced a bill that would make many of the court's opinions public. The group's press release explains the goal.

The Court’s rulings can include substantive interpretations of the law that could be quite different from a plain reading of the law passed by Congress, and such interpretations determine the extent of the government’s surveillance authority. There is certainly information included in the Court’s orders and rulings that is necessarily classified, related to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations of what the FISC says the law means should be made public.

One such interpretation is the ruling that the EFF is seeking. Wyden and other senators had previously asked the court to provide summaries of its rulings. The court said it couldn't.

Even if the bill were to pass (which we'll get to in a second), it probably wouldn't have the effect of releasing much information. The bill allows the Attorney General Eric Holder to determine whether or not a declassification would pose a national security risk. If so, it remains secret. The secret court, which is responsible for approving Holder's requests for electronic surveillance, makes its determinations hearing only one side of any case. It then allows the government to proceed with surveillance about 99.97 percent of the time. There is clearly some symbiosis at play. And Holder can simply rely on that magic word —"terror" — to block whichever decisions he sees fit.

It doesn't really matter. The bill is very unlikely to pass the Senate. Last year, when the body was considering a renewal of the FISA amendments that made elements of the government's spying legal, Wyden proposed this measure as an amendment. It garnered 37 votes. The amendment renewal was opposed by only 23 senators, three of them Republican. Of the six votes since 2002 for elements of the surveillance tools, current Senators voted for the tools 235 times, against 79. Nor will Wyden get the support of every Democrat. The numbers in the House are worse, and it's not clear whether or not the president would sign it.

This Thursday, the president's debate on his use of surveillance tools will happen. In secret, with only senators in the room. It's healthy for our democracy.

This article is from the archive of our partner The Wire.