The Secret Court and the NSA: Four Blunt Points

The National Security Agency headquarters in Fort Meade, Maryland Photograph by NSA va Getty Images

The latest ruling from the nation’s not-so-secret-anymore intelligence court may seem tentative and technical, but it deserves close attention. On Sept. 13, Judge F. Dennis Saylor of the Foreign Intelligence Surveillance Court directed the executive branch to consider releasing more of the court’s past classified opinions on the National Security Agency’s collection of phone data. Here’s why this is important:

1. Turns out the intelligence court isn’t as passive as many thought.

Acting in response to a motion by the American Civil Liberties Union, Saylor said that disclosing more of the court’s work would spur “informed debate” about privacy and bolster public confidence in intelligence oversight. Saylor, one of 11 federal judges who serve on a rotating basis on the intelligence court, also noted that the leaks by former NSA contractor Edward Snowden, which led to publication in June of a court order related to the NSA phone surveillance, had drawn widespread public interest—a worthwhile development, in the judge’s view.

Indeed, the Snowden leaks prompted the White House to order the release of two intelligence court rulings from 2009 and 2011, which sharply criticized the NSA for exceeding its authority and misleading the court. Critics of the intelligence court, some of whom have portrayed it as nothing more than a
rubber stamp for spies, will now have to pause and refine their analysis.

2. On the other hand, the way the intelligence court currently functions needs reform.

While the judges who serve on this special panel clearly have minds of their own, it took the Snowden scandal to jostle loose evidence of their skepticism of the NSA. A judicial body whose opinions are ordinarily classified cannot provide an effective check on a secret agency determined to defy that body. Clearly, Congress has to refine the procedures governing the intelligence court so that at least some policy-related rulings—or portions of those rulings—come to light as a matter of course.

3. Making this adjustment would help illuminate another mystery.

In its routine oversight of the NSA and Federal Bureau of Investigation, the intelligence court rarely turns down requests for particular eavesdropping warrants. Why?

Maybe the judges are patsies after all. Or it may be that on a case-by-case basis, they carefully review requests to listen to the content of particular phone calls placed by terrorism suspects. If so, how has that review process been affected by the court’s apparently growing unease over the NSA’s bulk collection of “metadata”—phone numbers, call times, and call duration? We can’t know without more transparency.

4. The Saylor ruling underscores the conundrum of law-breakers whose violations engender healthy debate.

Snowden defied legitimate legal restrictions on releasing classified information. Keeping some secrets in the name of security makes sense. The NSA and FBI can’t track potential mass murderers entirely in public. If he’s ever returned to the U.S., Snowden faces punishment. Which is why, of course, he’s hiding in Russia.

Still, in the inevitable tension between national security and civil liberties—between keeping citizens safe and curbing government overreach—the periodic and predictable misconduct of a Snowden can have beneficial effects. Even James Clapper, the Obama administration’s director of intelligence, conceded in a speech on Sept. 12 that the Snowden affair had led to a “needed” debate about the balance of safety vs. privacy. Clapper hasn’t become a Snowden fan. The intelligence official acknowledged, though, at least implicitly, that governance isn’t a simple, linear process. It’s fraught with contradiction. An inevitable result of secret government activity—even generally justifiable secret activity—is that from time to time, one of the human beings involved will go rogue.

The threat of occasional revelation—amplified by rambunctious activists and journalists—provides one check on secret activity getting out of hand. An independent judicial branch provides another vital check. If there’s a genius to the conflict-ridden system that Madison, Hamilton, and a few others devised in the 18th century, that’s it.

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