Several members of the Senate Intelligence Committee wrote to the Foreign
Intelligence Surveillance Court this month to ask the Court to prepare
summaries of classified opinions that represent significant interpretations
of the Foreign Intelligence Surveillance Act in order to facilitate their
declassification and public release.
Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the
constitutionality of the FISA Amendments Act lacked the requisite legal
standing to pursue their case, effectively foreclosing public oversight of
intelligence surveillance through the courts.
The Senate letter, the text of which was not released, stems from an
amendment to the FISA Amendments Act that was introduced by Sen. Jeff
Merkley in December to promote declassification of significant Surveillance
Court opinons. The Merkley amendment was not adopted -- none of the
legislative proposals to increase accountability were approved -- but
Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work
with Sen. Merkley to advance the declassification of FISC opinions.
"An open and democratic society such as ours should not be governed by
secret laws, and judicial interpretations are as much a part of the law as
the words that make up our statute," said Sen. Merkley at that time. "The
opinions of the FISA Court are controlling. They do matter. When a law is
kept secret, public debate, legislative intent, and finding the right
balance between security and privacy all suffer."
http://www.fas.org/irp/congress/2012_cr/faa-amend.html
"I wish to address, if I could, what Senator Merkley said in his
comments," said Sen. Feinstein during the December 27 floor debate. "I
listened carefully. What he is saying is opinions of the Foreign
Intelligence Surveillance Court should, in some way, shape or form, be made
public, just as opinions of the Supreme Court or any court are made
available to the public. To a great extent, I find myself in agreement with
that. They should be."
"I have offered to Senator Merkley to write a letter requesting
declassification of more FISA Court opinions," Sen. Feinstein continued.
"[...] When possible, the opinions of the Foreign Intelligence Surveillance
Court should be made available to the public in declassified form. It can
be done, and I think it should be done more often. If the opinion cannot be
made public, hopefully a summary of the opinion can. And I have agreed with
Senator Merkley to work together on this issue."
That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark
Udall, has now been sent to the FISA Court, where it awaits an official
response.
Though the letter itself is a modest step, the willingness of
congressional overseers to assert themselves on behalf of public
accountability takes on new importance in light of yesterday's Supreme
Court decision (by a 5-4 vote) to block a constitutional challenge to the
FISA Amendments Act. That decision all but closes the door to public
oversight of the law's implementation through the courts.
http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf
The Court majority insisted that judicial review of government
surveillance activities is alive and well, contrary to the plaintiffs'
assertion. It is "both legally and factually incorrect" to assert that
surveillance is insulated from judicial review, stated the majority opinion
written by Justice Samuel A. Alito, Jr., who cited the role of the Foreign
Intelligence Surveillance Court in authorizing surveillance activities.
But ACLU attorney Jameel Jaffer said that view "seems to be based on the
theory that the FISA Court may one day, in some as-yet unimagined case,
subject the law to constitutional review, but that day may never come. And
if it does, the proceeding will take place in a court that meets in secret,
doesn't ordinarily publish its decisions, and has limited authority to
consider constitutional arguments. This theory is foreign to the
Constitution and inconsistent with fundamental democratic values," Jaffer
said.
On Monday, Sen. Feinstein paid tribute to L. Christine Healey, a
professional staff member of the Senate Intelligence Committee who is
retiring this week. For three decades, Ms. Healey has played an
influential role in intelligence oversight as a staffer on the House and
Senate intelligence committees, as well as on the 9/11 Commission. "She
has been as responsible as anyone for the passage of a string of four
annual intelligence authorization bills, including the fiscal year 2013 act
that was completed in December," said Sen. Feinstein.
Ms. Healey was also credited by Sen. Feinstein as "the principal drafter
of the FISA Amendments Act of 2008."
http://www.fas.org/irp/congress/2013_cr/healey.html
A PROFILE OF THE 113TH CONGRESS, AND MORE FROM CRS
"The average age of Members of the 113th Congress is among the highest of
any Congress in recent U.S. history," according to a new report from the
Congressional Research Service. The average age of Members of the House of
Representatives is 57 years, while the average age of Senators is 62 years.
"The overwhelming majority of Members of Congress have a college
education," the CRS found. "The dominant professions of Members are public
service/politics, business, and law. Most Members identify as Christians,
and Protestants collectively constitute the majority religious affiliation.
Roman Catholics account for the largest single religious denomination, and
numerous other affiliations are represented."
One hundred women (a record number) serve in the 113th Congress. There are
43 African American Members, and 38 Hispanic or Latino Members (a record
number) serving. Thirteen Members are Asian American or Pacific Islanders.
There is one Native American serving in the House.
See Membership of the 113th Congress: A Profile, February 20, 2013:
http://www.fas.org/sgp/crs/misc/R42964.pdf
Other noteworthy new and updated products of the Congressional Research
Service that Congress has not made publicly available include the
following.
Congressional Authority to Limit Military Operations, February 19, 2013:
http://www.fas.org/sgp/crs/natsec/R41989.pdf
Nuclear Weapons R&D Organizations in Nine Nations, February 22, 2013:
http://www.fas.org/sgp/crs/nuke/R40439.pdf
Bond v. United States: Validity and Construction of the Federal Chemical
Weapons Statute, February 21, 2013:
http://www.fas.org/sgp/crs/nuke/R42968.pdf
Arms Control and Nonproliferation: A Catalog of Treaties and Agreements,
February 20, 2013:
http://www.fas.org/sgp/crs/nuke/RL33865.pdf
Border Security: Understanding Threats at U.S. Borders, February 21, 2013:
http://www.fas.org/sgp/crs/homesec/R42969.pdf
NAFTA at 20: Overview and Trade Effects, February 21, 2013:
http://www.fas.org/sgp/crs/row/R42965.pdf
Navy Force Structure and Shipbuilding Plans: Background and Issues for
Congress, February 22, 2013, with new material on the anticipated impact of
sequestration:
http://www.fas.org/sgp/crs/weapons/RL32665.pdf
Azerbaijan: Recent Developments and U.S. Interests, February 22, 2013:
http://www.fas.org/sgp/crs/row/97-522.pdf
U.S.-Japan Economic Relations: Significance, Prospects, and Policy
Options, February 20, 2013:
http://www.fas.org/sgp/crs/row/RL32649.pdf
Egypt: Background and U.S. Relations, February 26, 2013:
http://www.fas.org/sgp/crs/mideast/RL33003.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
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