THE global manhunt for Edward Snowden, which has all the elements of a “Bourne” movie sequel, is distracting the country from the real issue here: secret courts on U.S. soil.
Snowden sparked a furious debate about the balance between privacy and national security when he leaked information concerning the NSA’s widespread surveillance program. But the most notable feature of this debate is that it has revealed how uninformed and ill-equipped we are to have it.
Let me explain. Snowden’s leaks revealed the NSA had obtained an order from the Foreign Intelligence Surveillance Court (FISC) mandating that Verizon turn over, “on an ongoing daily basis … all call data records” for every phone call made in the United States or between the United States and abroad.
That’s quite the warrant. Presumably the NSA had a good reason to ask for it.
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Were the NSA’s reasons good enough? We don’t know. The FISC, a special court set up by the Foreign Intelligence Surveillance Act, meets in secret and its decisions are classified.
That makes sense because we don’t want our espionage efforts plastered across newspapers in Tehran or Moscow. However, not everything about the FISC must be kept secret, and the Snowden leak shows why the court ought to be more transparent about its legal reasoning.
While we shouldn’t know all the circumstances for why the court ordered Verizon to turn over all this data to the NSA, we should know the legal principles on which the FISC based its decision-making.
And we certainly need to know how broadly the FISC is interpreting certain provisions of the Foreign Intelligence Surveillance Act — especially those provisions that are set to expire in 2015 and 2017 — so that we can have a debate about whether those interpretations conform with our values. If we disagree with how the court is interpreting certain provisions, we can pressure Congress to rewrite the law or to let provisions expire. In fact, President Obama has said that he welcomes this debate, and thinks it’s “healthy for our democracy.”
Yet we can’t have that debate because FISC has steadfastly refused to publish its opinions and the legal principles on which its opinions are based.
For instance, we know that the Fourth Amendment’s search-and-seizure clause prohibits “general warrants,” or warrants that aren’t specific to a particular place, person or object. So how did FISC get around this constitutional principle when issuing the Verizon order, which may be the most general warrant ever issued in American history? We have no idea.
How does the FISC determine whether to approve a particular warrant that will inevitably sweep up every American’s phone records? We don’t know. That’s classified.
How does the FISC weigh the credibility of the government’s claims that a particular threat is imminent? We’re not allowed to know that either.
The FISC has rejected calls to release even summaries of its opinions, claiming that it would be too much work, and that the legal principles cannot be divorced from the classified facts upon which they are based. Those objections have no merit.
It’s true that it may be difficult to separate principles from facts, but unless the court is flying by the seat of its pants each time the government asks for a warrant, chances are the court applies a set of principles to determine whether the government’s requests are consistent with our constitutional principles.
If this court is operating differently, then we certainly need to know about that.
It’s certainly true that releasing summaries and redacted distillations would entail more work for a court that’s already very busy. But that’s the price we should be willing to pay to ensure that a court that meets in secret has some check on it.
It’s not yet clear whether Snowden’s leaks concerning the NSA’s surveillance program will compromise national security, bolster civil liberties or neither. What is clear is that the leaks have prompted a much-needed and long overdue debate.
For that debate to be informed, the FISC should tell us more about how it’s interpreting our laws and our constitution.
David A. Perez is an attorney at Perkins Coie in Seattle. The opinions expressed are his own.