Alex Abdo, staff attorney at the American Civil Liberties Union, advocated transparency above all else. "Our country's founders believed that tyranny could be prevented through checks and balances. I think the same holds true today." For that to happen, though, people need to know what's happening.
[I]t should mean that the public has access to significant or novel legal interpretations issued by the FISC. That would have gone a long way toward preventing the 215 program, because Congress and the public would have been able to judge the lawfulness and necessity of the government's programs for themselves.
"In short," Abdo said, "our privacy rights shouldn't be interpreted away in secret. … Secrecy has its place, but it should not be used as an excuse to keep any branch of government or the public out of the debate entirely. This type of solution is also key to long-term legitimacy."
In the 1970s, following revelations of domestic surveillance by the NSA — and rampant abuses by other intelligence services — the Church Committee was formed in the Senate in an effort to better determine the guidelines under which the agencies should operate. There were eventually other steps: the 1978 Foreign Intelligence Surveillance Act itself, which codified some of the committee's findings, and President Ronald Reagan's 1981 executive order extending the agencies' power while adding some new boundaries. (The vast majority of the NSA violations revealed in the Snowden leaks were violations of this order.)
Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation, suggested revisiting the idea of forming a new Congressional commission to tackle these issues. "If Congress has the political will," he told us, "it can easily write language to stop bulk collection." But:
[T]o really be sure that Congress can legislate well, we really need a new Church Commission. … The key idea behind a new Church Committee would be to investigate first, and then legislate later with a better understanding. It may not result in restrictions that will be effective for all time, in light of technologies not dreamed about now, but it's the right thing to do now.
Neither Opsahl nor Abdo, you'll notice, are advocating specific proposals since without further exploration of what's actually happening, it's difficult to draw policy. The most important part of Opsahl's statement, though, is the first part. "If Congress has the political will." The Senate Intelligence Committee, in passing the tweaks encompassed in the FISA Improvements Act has shown a lack of will to try and figure out how to create new limits on the NSA's activity. But perhaps the most obvious example of a lack of will comes from Feinstein's House counterpart, Rep. Mike Rogers of Michigan. In a hearing this week, he confronted American University law professor Steve Vladeck, as reported by MSNBC.
Rogers: I would argue the fact that we haven’t had any complaints come forward with any specificity arguing that their privacy has been violated, clearly indicates, in 10 years, clearly indicates that something must be doing right. Somebody must be doing something exactly right.
Vladeck: But who would be complaining?
Rogers: Somebody who’s privacy was violated. You can’t have your privacy violated if you don’t know your privacy is violated.
This is a corollary to the Supreme Court's rejection, earlier this year, of a lawsuit targeting the NSA. The Court ruled that the plaintiffs weren't affected by the surveillance and therefore couldn't sue; assured by the government that those being watched would be told — and so could knowingly bring a suit — the Court threw out the case. It then turned out that the government wasn't informing people that NSA surveillance generated the evidence against them.