Several members of the Senate Intelligence Committee wrote to the Foreign Intelligence Surveillance Court this month to ask the Court to prepare summaries of classified opinions that represent significant interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.
Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the constitutionality of the FISA Amendments Act lacked the requisite legal standing to pursue their case, effectively foreclosing public oversight of intelligence surveillance through the courts.
The Senate letter, the text of which was not released, stems from an amendment to the FISA Amendments Act that was introduced by Sen. Jeff Merkley in December to promote declassification of significant Surveillance Court opinons. The Merkley amendment was not adopted — none of the legislative proposals to increase accountability were approved — but Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work with Sen. Merkley to advance the declassification of FISC opinions.
“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute,” said Sen. Merkley at that time. “The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”
“I wish to address, if I could, what Senator Merkley said in his comments,” said Sen. Feinstein during the December 27 floor debate. “I listened carefully. What he is saying is opinions of the Foreign Intelligence Surveillance Court should, in some way, shape or form, be made public, just as opinions of the Supreme Court or any court are made available to the public. To a great extent, I find myself in agreement with that. They should be.”
“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” Sen. Feinstein continued. “[...] When possible, the opinions of the Foreign Intelligence Surveillance Court should be made available to the public in declassified form. It can be done, and I think it should be done more often. If the opinion cannot be made public, hopefully a summary of the opinion can. And I have agreed with Senator Merkley to work together on this issue.”
That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark Udall, has now been sent to the FISA Court, where it awaits an official response.
Though the letter itself is a modest step, the willingness of congressional overseers to assert themselves on behalf of public accountability takes on new importance in light of yesterday’s Supreme Court decision (by a 5-4 vote) to block a constitutional challenge to the FISA Amendments Act. That decision all but closes the door to public oversight of the law’s implementation through the courts.
The Court majority insisted that judicial review of government surveillance activities is alive and well, contrary to the plaintiffs’ assertion. It is “both legally and factually incorrect” to assert that surveillance is insulated from judicial review, stated the majority opinion written by Justice Samuel A. Alito, Jr., who cited the role of the Foreign Intelligence Surveillance Court in authorizing surveillance activities.
But ACLU attorney Jameel Jaffer said that view “seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values,” Jaffer said.
On Monday, Sen. Feinstein paid tribute to L. Christine Healey, a professional staff member of the Senate Intelligence Committee who is retiring this week. For three decades, Ms. Healey has played an influential role in intelligence oversight as a staffer on the House and Senate intelligence committees, as well as on the 9/11 Commission. “She has been as responsible as anyone for the passage of a string of four annual intelligence authorization bills, including the fiscal year 2013 act that was completed in December,” said Sen. Feinstein.
Ms. Healey was also credited by Sen. Feinstein as “the principal drafter of the FISA Amendments Act of 2008.”