As 2012 came to a close, Congress reauthorized the FISA Amendments Act (FAA) for another 5 years. Yes, the same FAA under which the government conducted unconstitutional surveillance; the same FAA for which the government refuses to estimate the number of Americans who have been spied on; and yes, the same FAA that has been interpreted in substantial ways within secret court opinions.
However, in the debate leading up to the reauthorization, Senator Jeff Merkley sponsored a straightforward amendment, with bipartisan support, that would have provided the public with a greater understanding of the FAA and the government’s interpretations of the law. Here’s a picture of the Senator, with a not-so-subtle visual aid describing the effect his amendment would have.
The amendment was a measured nudge towards greater transparency: it would have required the government to either declassify Foreign Intelligence Surveillance Court (FISC) opinions, or provide unclassified summaries of those opinions; or, even failing that, just give a progress report on the status of trying to declassify FISC opinions. Despite outspoken advocates for FAA reform like Senators Merkley, Wyden, Udall, and Paul, the Senate voted down the Merkley Amendment, 54-37.
Want to see what Senator Merkley was talking about? What the Senate decided they didn't need to address? Here is a sample of the government’s response to EFF’s FOIA lawsuit for the secret FISC opinions that found the government's FAA surveillance unconstitutional:
(You can click on the thumbnails for more detail -- but don't worry, you're not missing much.) The government's full response, received only a few days after the FAA was reauthorized, is here (pdf). It's a perfect example of the type of “secret law” Senator Merkley's amendment was attempting to reform. Indeed, the government's secrecy claims are so extreme that it failed to release, even in entirely redacted form, the actual FISC opinions EFF requested. The records released by the government were just summaries (albeit wholly-redacted ones) of those FISC opinions that were provided to Congressional intelligence committees.
Secret Law? What Secret Law?
Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These interpretations, according to the Senators, are contained in opinions issued by the FISC.
But perplexingly, both the executive branch and other members of the Senate have taken the position that, despite the secrecy of the FISC opinions, those opinions do not constitute “the law” or “secret law.” For example, Senator Feinstein, in opposing Senator Merkley’s Amendment, stated (pdf):
Nevertheless, I am concerned that what is happening is the term “secret law” is being confused with what the Foreign Intelligence Surveillance Court issues in the form of classified opinions based on classified intelligence programs.
Senator Feinstein’s statement is remarkably similar to an argument made by the DOJ in a brief in EFF’s Patriot Act Section 215 FOIA case, yet another case involving a secret interpretation of surveillance law. In that brief, the DOJ argued that EFF “attempts to conflate the meaning of the word ‘secret’ in the phrase ‘secret law’ with the use of the word ‘secret’ for national security purposes.” (pdf)
But this much is clear: when a court issues an opinion containing a significant interpretation of a public statute, that court’s opinion is the law. When the court’s opinion is withheld from the public, that opinion is a “secret,” even if the statute the opinion interprets is already publicly available. Because a court’s opinion constitutes the “law,” refusing to disclose those opinions to the public results in “secret law.”
The basis for the government’s secrecy claim is irrelevant: the law is still “secret” whether the opinion is classified, protected by the attorney-client privilege, or kept secret for any other of the host of legal privileges available to the government.
The only relevant issue is whether the law is publicly disclosed. And EFF joins with Senators Merkley, Wyden, Udall, Paul, and the other 33 Senators that voted to support this simple principle: when the government interprets federal surveillance law in a way that fundamentally affects citizens rights, that interpretation must be disclosed. And, while we may have lost the battle in Congress for now, we'll keep fighting in the courts for the public's right to know.