The Washington PostDemocracy Dies in Darkness

Yes, we could have that `debate’ about NSA surveillance

Placeholder while article actions load

So here’s a question. President Obama says he welcomes a “debate” over the NSA surveillance programs and, more broadly, over the proper balance between national security on the one hand and civil liberties and the right to privacy on the other. However, the level of secrecy shrouding these programs makes any serious debate abut them virtually impossible.

But couldn’t the Obama administration declassify the Foreign Intelligence Surveillance Court (FISC) opinions that make this surveillance possible if it wanted to?

The answer is Yes, according to Michelle Richardson, legislative counsel for the American Civil Liberties Union. “It’s totally within the administration’s control to declassify these opinions, after redactions, if necessary,” Richardson says. “So there could actually be an informed debate about the legal basis for this sort of data collection.”

A bipartisan group of senators — led by progressive Jeff Merkley and Tea Partyer Mike Lee — is coalescing around a bill that would require the declassification and release of these legal opinions. But the appetite in Congress for this step appears limited, given that most Members support the programs.

Still, it seems clear that the administration could declassify these opinions itself, at least in some form. Indeed, even Senator Dianne Feinstein — the chair of the Intelligence Committee and a very aggressive defender of the NSA programs — signed a letter earlier this year to the FISC, asking the court to do just that. The letter noted that the court could issue “summaries” of its interpretations of the Foreign Intelligence Surveillance Act — revealing the legal thinking behind using the Act to authorize surveillance activity — while keeping the classified aspects of each specific administration request for this authorization under wraps.

It needs to be said that the demand for declassification of these opinions in no way goes to the question of whether the programs should continue. And Obama himself has defended these programs by arguing that they are subject to oversight from all three branches of government, explicitly noting that the FISC has authorized them.

But we don’t have any meaningful sense of how the FISC has interpreted existing law to arrive at that authorization. And indeed, notes Richardson, we don’t know precisely what the government has asked the FISC to authorize, since in many cases, the court has reportedly modified the original request. “It’s possible the administration is trying to get even broader access to records than what we’re seeing,” Richardson says.

If Congress doesn’t act to compel declassification of these opinions, you may well see progressive groups gear up to exert pressure directly on the administration to declassify them. That could be another frontier in this battle.

No one is saying the administration is likely to declassify these opinions anytime soon. But as best as I can determine, it is theoretically possible to do it, which is to say, we could be having at least a portion of the debate the White House says it wants about these issues.


UPDATE: To be clear, the most likely way to make this happen is for Congress to compel it. Folks could pressure both Congress and the administration on this.