President Obama defends the secret National Security Agency surveillance programs by claiming they have saved lives. The director of the NSA insists the programs have helped disrupt more than 50 terrorism plots around the world.
Even if all of this were true, it would not amount to an argument against declassifying the legal rationale that makes them possible. The Obama administration has still not offered any credible reason I am aware of for not declassifying the Foreign Intelligence Surveillance Court opinions authorizing these programs. But the push for this to happen will — and should — continue.
How many members of Congress are willing to step up and voice support for this simple step?
Today, I’m told, a bipartisan group of Members of Congress will introduce a bill in the House that would compel the declassification and release of these opinions. The bill is a companion House version to the Senate bill — spearheaded by progressive Jeff Merkley and Tea Partyer Mike Lee — that would do the same.
“It’s very hard to have an informed public debate about these programs and their privacy protections without being able to look at the FISA court opinions,” Dem Rep. Adam Schiff, who is co-sponsoring the bill, told me today. “Now that the programs are public, many of the reasons for maintaining that secrecy have fallen away.”
Schiff, who opposed warrantless wiretapping during the Bush years, is introducing the bill with GOP Rep. Todd Rokita, and Democrats Henry Waxman, Rush Holt, Jackie Speier, Beto O’Rourke, and William Enyart. The goal is to get the FISA court to release key opinions revealing its own — and the Obama administration’s — interpretation of sections of the Patriot Act that justify such broad surveillance.
Obama has said the FISA court is “transparent.” Schiff differed with the president, albeit politely. “It constitutes a check and balance,” Schiff said. “The administration is correct when it says the court is not a rubber stamp. But I think the transparency of the court could be greatly improved by the publication of its opinions.”
This needn’t conflict with the argument — true or not — that the NSA programs are necessary to protect the American people. “These programs contribute to our national security,” Schiff said, “but that’s not an argument against declassification of court opinions that would better inform the American people about how they operate.”
There is no telling how many members of Congress will end up supporting declassification. Currently there are roughly a dozen Senators on board with the Merkley-Lee proposal. And Schiff says he expects that many more Representatives — from both parties — will join his proposal. But the question remains: How many members of Congress — how many Democrats in Congress — are willing to support this step? This push will seriously test just how far the alliance between the libertarian right and civil liberties left can go.
Meanwhile, it seems clear that Obama himself could declassify the opinions if he wanted to. As noted here yesterday:
To his credit, Obama has said that concerns about the secrecy shrouding these programs are “legitimate,” and has promised to push for more public disclosure. Voicing support for the declassification and release of key FISA opinions would be a good place to start, and would help bring about the “debate” Obama says he wants. Alternatively, if there is some reason why this is not a good idea, the President should tell us what it is.
Schiff adds: “In the interim, we’d like to see the administration act on its own to declassify these opinions to the maximum degree possible.”
There is broad support within Congress for the NSA programs, and an apparent reluctance to push for FISA court declassification. But again: the demand for declassification of these opinions does not constitute a demand to change or end the programs themselves. It is only about making a meaningful public debate about them — the one Obama says he wants — possible.
UPDATE: I should have added that members of Congress pushing for declassification also recognize that if the government decides there’s a security risk in releasing opinions, key info can be redacted or summaries of the decisions can be released.