The FISA Amendments Act (FAA) enacted in 2008 and extended in 2012, has been the subject of much controversy as of late. The Act authorizes the Attorney General or the Director of National Intelligence to gather intelligence information on individuals who are “reasonably believed to be out of the United States.” Of course, the Act places several restrictions on the government in order to prevent the warrantless seizure of information on U.S. citizens. Beyond these restrictions that mainly prohibit intentional misuse of the Act in order to collect information from people in the United States or U.S. people abroad, the FAA also provides for judicial review of the targeting procedures that the government uses to gather information. However, one large concern of opponents of the Act is that the information gathered and the judicial review process are largely confidential.
The Federal Intelligence Surveillance Court (FISC) handles judicial review of the FAA cases. These courts writes full, binding opinions on the permissibility of certain targeting and surveillance practices of the federal government. Proponents of the Act support the privacy interests of those conducting foreign intelligence gathering to keep us safe– keeping this information confidential is essential to protecting their efforts to thwart potential foreign attacks. Many citizens, including several senators, however, were not keen on extending the life of the Act without increasing transparency on an otherwise opaque process.
One major concern over transparency is that while the government may not be intending to collect information on people in the United States or our citizens abroad, we have no idea how much inadvertent surveillance of American citizens the government has conducted. We also don’t know how FISCs are interpreting the statute and whether or not their interpretation is markedly different from the Congress’s intent. Organizations like the ACLU believe that the American people have a right to know how effective current procedures are in keeping American citizens and those in the US from mistakenly having their privacy interests infringed upon. At the same time, Congress has no way of knowing if they should look into changing the wording of the Act to ensure that the court interprets the statute as intended. Two proposed amendments to the FAA arose out of this concern.
In 2012 when the Senate voted on extending the deadline for the FAA, Senator Jeff Merkley (D-OR) introduced S. 3515 and “put the Senate to a vote on whether the administration should be forced to release the court opinions, supply unclassified summaries of them, or explain why they should be kept secret.” Finding that “Secret law is inconsistent with democratic governance. In order for the rule of law to prevail, the requirements of the law must be publicly discoverable,” Merkley’s proposed Amendment would require that the Attorney General disclose each decision, order, or opinion of a FISC that includes significant interpretations of FISA. If declassification of the full text would compromise national security, then the AG should provide summaries of the opinions. If even that will compromise national security, the Amendment asks the AG to provide a report on where they are in the process of declassifying these materials.
Those who opposed this Amendment worried about the potential dangers of requiring the administrators to broadcast classified information to the world, putting all Americans at grave risk. Further, they believed the Amendment unrealistic to accomplish – these opinions contain facts about current surveillance techniques and targeted subjects that they cannot separate out. Finally, though Senator Merkley’s Amendment allows for summaries and updates that might avoid some of these national security issues, a major concern for the Senate and Congress was the timing. Indeed, the Senate discussed this proposed amendment on December 27, 2012, just 4 days before the President had to sign the bill.
What do you think? Was this proposed amendment worth holding up a bill that helps monitor potential foreign threats? Should we be concerned about “secret legal opinions”? Is this just the price we pay for a safer America?
 50 U.S.C. §§ 1801-1885 (2012), available at http://uscode.house.gov/download/pls/50C36.txt
 Press Release, ACLU Background on FISA Amendments Reauthorization Act of 2012 (December, 27, 2012).
 Protect America’s Privacy Act, proposed Apr. 2, 2012, available at http://thomas.loc.gov/cgi-bin/bdquery/D?d112:28:./temp/~bdhJ2T::
 Michelle Richardson, Warrantless Wiretapping Wins Again, ACLU Blog of Rights (Jan. 2, 2013), http://www.aclu.org/blog/national-security/warrantless-wiretapping-wins-again.
 Congressional Record for Senate, 112th Congress (Dec. 27, 2012).