Congress and NSA Secrecy

July 18, 2013 Topic: CongressIntelligence Region: United States Blog Brand: The Buzz

Congress and NSA Secrecy

At the Washington Post’s “Plum Line” blog, Greg Sargent discusses some of the responses in Congress to the recent revelations regarding the National Security Agency and the FISA court, and makes a great point:


What continues to remain striking is that, for all the intense media attention to the NSA story, almost no attention has been given to efforts such as these that would actually do something about the problem, or at least one important dimension of the problem.

There are three explanations for this. First, the drama that has played out with Edward Snowden, from his flight to Hong Kong to his current state of limbo in the Moscow airport, is undeniably fascinating. It is hardly surprising that people find the story interesting and that it is eating up a ton of media oxygen. Second, many in both parties are simply not bothered by the substance of what has been disclosed. Senator Dianne Feinstein put it most starkly the day after the Guardian first reported on the NSA’s bulk collection of metadata when she dismissed criticism of the programs by saying that “It’s called protecting America.” And the third reason, as Sargent notes, is that the suggested policy fixes “have little chance of going anywhere” in Congress.

Nevertheless, Sargent is right that the efforts in Congress to roll back some of the secrecy surrounding the NSA and the FISA court deserve both more attention and more support. He calls attention to a series of proposals that have been made, of which one is particularly noteworthy. Last month, a group of eight senators, led by Democrat Jeff Merkley and Republican Mike Lee, introduced a bill that would require the declassification of the FISA court’s opinions that provide the legal basis for the extent of the NSA’s surveillance. As the New York Times reported recently, the court, which was “was once mostly focused on approving case-by-case wiretapping orders,” has now “become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.” In doing so, it has dramatically expanded the scope of legalized surveillance—in part, the Wall Street Journal revealed, by redefining the word “relevant” to encompass databases of “records on millions of people” rather than more individualized requests.

As Ron Wyden, another of the eight senators, said, “It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy.” Indeed, it is clear now that the FISA court’s interpretation of the law is markedly different from what members of Congress understood themselves to be voting for when they reauthorized the Patriot Act in 2006. Hence, the senators’ push to declassify the rulings is a welcome one. Whether or not one believes that the NSA’s dragnet-style collection of metadata is in America’s best interest, the idea that it ought to have continued forever without public knowledge and justified only by a secret body of legal rulings, is pretty much indefensible.