Open up rulings of secret court to protect democracy
The United States has forsworn secret prisons. But we have reams of secret laws for our secret intelligence agencies, interpreted by a secret court that hands down secret rulings.
The time is ripe to declassify the rulings, enough to reassure us that the rule of law remains in the realm of government eavesdropping. Eight senators – Republicans and Democrats – introduced a bill this week to do just that. The Justice Department has broken promises since 2010 to publish the rulings, and the blame lies with Attorney General Eric Holder.
Publishing the rulings could explain the National Security Agency’s access to the email and telephone data of American citizens and corporations. It might calm fears about government surveillance. Or it might shock the conscience. Either way, we should read them to understand what the government is doing in the name of national security.
The alternative is more illegal leaks and official lies.
The rulings in question come from the Foreign Intelligence Surveillance Court. That panel of 11 federal judges, selected by the chief justice of the United States, oversees warrants for electronic eavesdropping, bugging, wiretapping and, we now know, the collaboration of social media and telecommunications giants who share metadata with the NSA.
We know that because Edward Snowden leaked a top-secret April 25 ruling by the secret court. The ruling renewed the NSA’s authority to collect all the domestic-calling records of a business subsidiary of Verizon under Section 215 of the Patriot Act.
Congress created the secret court in 1978 to curb the abuses of the NSA, the CIA and the FBI, which had conducted wiretaps, bugging and break- ins without judicial warrants under Presidents Lyndon Johnson and Richard Nixon. That conduct violated the Fourth Amendment’s ban on unwarranted and unreasonable searches and seizures.
A secret warrant is justified for surveillance against suspected spies and terrorists. The FBI and the NSA sought more than 18,000 such warrants in the years before the Sept. 11, 2001, attacks; the court usually said yes.
Then, George W. Bush’s administration played havoc with the law and the Constitution.
President Bush believed the emergency created by the Sept. 11, 2001, attacks allowed the government to spy on anyone without a warrant. He was “free from the constraints of the Fourth Amendment” when it came to unleashing the NSA. The agency is a military-intelligence service – and “the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism.”
You have to read between the lines of the congressional record to see where the problems in the laws may lie. My guess is while the NSA conducts surveillance on foreigners overseas – that’s totally legal – it is in the process of gathering intelligence on people in the U.S. without a warrant. That might be totally illegal.
Let us see what the FISA Court has to say about it.
(Tim Weiner, a former national security correspondent for the New York Times, is the author, most recently, of “Enemies: A History of the FBI.”)