Opening the Surveillance State’s Secret Courts

Are we ready now for that discussion about secrecy? In December, in a holiday-season rush to reauthorize the Foreign Intelligence Surveillance Act, the U.S. Senate shot down several amendments intended to limit the powers the act grants to the government and to scale back the near-total secrecy that it authorizes.

Fortunately, the most compelling of the downed FISA amendments was introduced as a new bill yesterday by its original sponsor, Democratic Senator Jeff Merkley of Oregon, and a handful of co-sponsors, including Republican Mike Lee of Utah. The bill would require the U.S. attorney general to declassify some opinions of the Foreign Intelligence Surveillance Court, which considers government requests for surveillance authorization in the U.S. and abroad. All such opinions are now secret, as are the court’s interpretations of the law that guides its decisions.

Those interpretations offer a starting point for a national debate on secrecy, a way for the public to see for itself the legal framework governing surveillance in the U.S.

takes care not to sacrifice national security. In cases in which the attorney general concluded that declassifying an opinion would undermine security, the court would instead issue a summary of its decision. If even that proved too sensitive, the bill would give the attorney general a mechanism to explain as much to Congress.

Here’s something else that can be done to initiate a responsible conversation about security and privacy: Google Inc. and other Internet companies have asked for government permission to disclose how often they complied with, or rejected, National Security Agency requests for metadata. The government should grant their requests. Those companies are potent strategic assets as well as thriving private businesses. Revelations about the Prism program have put them at risk in foreign markets. The U.S. government should do all it reasonably can to safeguard their reputations around the world.

The paradox of government surveillance programs is that in order to maintain a free and open society, authorities must be shielded from free and open debate about secret activities. We can acknowledge the necessity of that arrangement without ever being comfortable with it. Merkley’s bill promises an appropriate balance between government’s need for secrecy and the public’s need to know. Let the debate begin.

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