I’d like to think the phrase “secret law” is some kind democratic oxymoron, akin to a political-science experiment gone horribly awry.
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The rulings have been handed down by the 11-member Foreign Intelligence Surveillance Court – aka the FISA court – which saw its powers grow thanks to legislation approved with bipartisan majorities in the Bush/Cheney era.
What’s more, as Ezra Klein explained this morning, “When judges make the laws, Congress can always go back and remake the laws. The changes the court makes are public, and so is their reasoning. Both the voters and Congress know what the court has done, and can choose to revisit it…. [But the FISA court is] remaking the law in secret. The public has no opportunity to weigh in, and Congress can’t really make changes, because few know what the court is deciding, and almost no one can discuss the decisions without endangering themselves.”
Well, at least there’s some oversight when it comes to confirming the 11 jurists who sit on the FISA court, right? Wrong. All 11 judges were chosen solely by Supreme Court Chief Justice John Roberts, who’ll maintain this power until he resigns or dies.
I’ve received more than a few emails from readers who want to know why I don’t write more about Edward Snowden, and the truth is, it’s largely because his part of this story has taken on a human-interest angle. Where is he today? Is he on this plane or that plane? What were his motivations? Is he a whisteblower, a leaker, a criminal, a hero, or some combination? What did he say when he was younger? What about his girlfriend?
I’m interested in Snowden’s fate, but I don’t think the human-interest angle matters much to the country overall. What I’m far more interested in seeing policymakers focus on specific measures: reforming the surveillance system, introducing more oversight and checks and balances, questioning the very concept of secret laws, and declassifying FISA court rulings (an idea Greg Sargent has championed for quite a while).
But the more the focus is on “Will Snowden go to Venezuela?” the less the focus is on a policy debate that appears nowhere on the horizon.