Staying in the shadows.

Photographer: Andrew Harrer/Bloomberg

Senate's Troubling Move Toward Secret Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The proposed USA Freedom Act passed by the House is far from perfect -- but it does make some potentially meaningful improvements to move the U.S. away from a system of secret legal decisions made by a court that only hears the government’s side of the argument. Unfortunately, Senate Republicans under Majority Leader Mitch McConnell have proposed two amendments that would gut the act’s reforms to the existing bad system. It’s worth taking note of both, because both go to the very essence of what it means to be governed under the rule of law.

QuickTake NSA's Surveillance

The amendments have been changing so, as of Tuesday afternoon, they are a moving target. One of them, sometimes called Amendment 1451, seeks to alter the act’s new provisions to appoint lawyers to argue against the government on important new legal issues. The other amendment, 1452, removes a provision of the proposed act that would require the director of national intelligence to review decisions of the secret Foreign Intelligence Surveillance Court for possible declassification and publication.

Start with the specially appointed lawyers. Under the old surveillance laws, the government made almost all of its arguments to the secret surveillance court ex parte -- that is, unopposed by a lawyer on the other side. The argument in favor of this practice is that something similar happens every day when prosecutors want a subpoena or a warrant. Ordinary criminal court judges are good at deciding when prosecutors’ evidence should be trusted, and are capable of standing up to the prosecutors when they think a request has gone too far.

Not so in the secret surveillance court. Sure, standard requests for warrants may be analogous in both systems. But the government has gone much further before the surveillance court, asking it to approve an entire system of surveillance that allowed for the collection of metadata on all phone calls originating from the U.S. or going to it. The U.S. Court of Appeals for the Second Circuit recently ruled this practice unlawful -- but the secret court never did.

The USA Freedom Act tries to address this problem by directing the secret court to appoint a “special advocate” in the form of a lawyer (actually, five possible advocates) who would take sides against the government in any case involving a novel interpretation or expansion of the law. The point is to restore the adversarial system on which American justices is ordinarily based. Judges aren’t accustomed to deciding complex new legal issues without the benefit of argument on both sides. Without appointing counsel, the system is stacked in favor of the government. With counsel on the other side, there’s at least the possibility of a fairer decision process.

McConnell’s proposed Amendment 1451 guts this provision. In place of the requirements for special advocates, it simply states that the secret court has the authority to appoint a friend of the court to assist its work should it wish to do so. The court has always had this power, and has rarely if ever used it. A Republican legislative memo claims that “the judiciary” opposes the underlying provision. But as Steve Vladeck has argued forcefully on the indispensable Lawfare Blog, that’s none of the judiciary’s business. Anyway, the goal is clearly to make the government more likely to win, by avoiding the adversarial process.

The other provision is if anything worse. The proposed USA Freedom Act makes a small step toward ending the existence of secret legal decisions by requiring the director of national intelligence to consider declassifying opinions by the secret court. This provision has its problems, of course: The director might choose not to declassify to avoid embarrassment, even if national security wouldn’t really be negatively affected. But it’s better than nothing, and in any case, all declassification decisions are subject to the same general danger.

McConnell’s Amendment 1452 would, among other things, remove this requirement so that there would be no obligation even to consider declassifying decisions. We would continue to remain ignorant of new legal decisions -- unless, of course, they were leaked. Secret legal decisions are only a small step removed from secret laws. Indeed, when those secret legal decisions interpret the law in nonobvious ways, they in fact become secret laws.

And secret laws are the very contradiction of democracy. The people can’t governed by law and be governed under the law if the people can’t know what the law is. This secrecy, more even than the loss of privacy, is what’s so disturbing about the surveillance court. The loss of privacy is a terrible thing, but an informed public can change it. If the public doesn’t know that laws have been passed that give up its privacy, though, then the public can’t fix the problem, and democracy has failed.

If McConnell’s amendments pass the Senate, they will have to be reconciled with the House version of the bill. The House should stand up and say no -- not for privacy, but for democracy.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net