The Court That May Not Be Heard
Key Excerpts from Article on Website of New York Times
Posted: December 28th, 2007
The Foreign Intelligence Surveillance Court, the special court that reviews government requests for warrants to spy on suspected foreign agents in the United States, seems to have forgotten that its job is to ensure that the government is accountable for following the law not to help the Bush administration keep its secrets. Last week, the court denied a request by the American Civil Liberties Union to release portions of past rulings that would explain how it has interpreted the Foreign Intelligence Surveillance Act, or FISA. The court should share its legal reasoning with the public. After the 9/11 attacks, the National Security Agency for years engaged in domestic spying that violated both FISA and the Constitution. Earlier this year, after a court ruled that the program was illegal, the Bush administration said that in the future it would conduct surveillance with the approval of the intelligence court. At the same time, it announced that a judge of the court had issued orders setting out how the program could proceed. The administration has repeatedly referred to these orders, but has refused to make them public. As a result, it is impossible for the American people and even some members of Congress to know how the court reached its conclusions, or the state of the law with respect to domestic surveillance. The idea of courts developing law in secret and handing down legal principles that the public cannot know about should not be part of the American legal system. That is especially true when the subject matter is as important as the government spying on its citizens, an issue the founders who drafted the Fourth Amendment cared about deeply. The people have a right to know how the act, which is in the process of being revised, is being interpreted so they can tell their elected representatives what they think the law should be.