How to Bring FISA Into the Open

The public has a right to know more about the secret court’s interpretation of the law

Are we ready now for that discussion about secrecy? In December, in a holiday-season rush to reauthorize the Foreign Intelligence Surveillance Act, the U.S. Senate shot down several amendments intended to limit the powers the act grants to the government and to scale back the near-total secrecy of the FISA process.

A new bill introduced by Democratic Senator Jeff Merkley of Oregon and a handful of co-sponsors, including Republican Mike Lee of Utah, would require the U.S. attorney general to declassify some opinions of the FISA Court, which considers government requests for surveillance authorization in the U.S. and abroad. All such opinions are now secret, as are the court’s interpretations of the law that guides its decisions.

The bill takes care not to sacrifice national security. Should the attorney general conclude that declassifying a particular opinion would undermine security, the court would instead issue a summary of its decision. If even that proved too sensitive, the bill would give the attorney general a mechanism to explain as much to Congress.

Here’s something else that can be done to initiate a responsible conversation about security and privacy: Google and other Internet companies have asked for government permission to disclose how often they complied with, or rejected, National Security Agency requests for data. The government should grant their requests. Those companies are potent strategic assets as well as thriving private businesses. Revelations about the Prism program have put them at risk in foreign markets. The U.S. government should do all it reasonably can to safeguard their reputations around the world.

The paradox of government surveillance programs is that in order to maintain a free and open society, authorities must be shielded from free and open debate about secret activities. We can acknowledge the necessity of that arrangement without ever being comfortable with it. Merkley’s bill promises an appropriate balance between government’s need for secrecy and the public’s need to know. Let the debate begin.

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