Sen. Udall seeks transparency in secret FISA court decisions
“A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both,” James Madison said. He was one of several leading founding fathers who warned against government secrecy.
It is almost impossible not to apply this insight to the political farce of excessive partisanship and the tragedy that could result from political decisions driven by ideology rather than reason.
Democracy depends on informed choice. Unless citizens have access to accurate information, unfiltered through party ideological interpretations, full participation in democracy is not possible.
Also, open and transparent government is the best way for voters to hold politicians and bureaucrats accountable. If government is free to release only information it chooses, it is propaganda, not information on which to make an informed decision.
As the nation teeters ever closer to the Total Information Awareness program envisioned by some government and political officials in the Bush administration, it is more imperative than ever that we know what the government is doing in our names.
Colorado Sen. Mark Udall is among the leaders in the fight against excessive government secrecy. He and Oregon Sen. Ron Wyden are leading the fight against use of the Patriot Act as a shield against public exposure of the government’s interpretation of its surveillance powers under the act.
Government officials apply to a court created under FISA — the Foreign Intelligence Surveillance Act — for legal opinions, issued in secrecy, on secret anti-terrorist operations proposed by the government. As members of the Senate Intelligence Committee, Udall and Wyden have access to the decisions of the FISA court.
“When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Udall stated in a letter to Attorney General Eric Holder.
The letter to Holder continued. “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.”
This general ignorance of what Patriot Act allows is not confined to the American people. According to Udall and Wyden, most legislators are not familiar with the FISA court rulings either. “Many of them would be surprised and angry to learn how the Patriot Act has been interpreted in secret,” the senators’ letter said.
After a Justice Department official testified that releasing any information about the FISA legal interpretations would reveal the inner workings of covert anti-terror operations, Udall and Wyden wrote their letter to Holder.
Because the opinions are classified, Udall and Wyden cannot reveal the interpretations of the Patriot Act they found alarming. However, they have called on Holder to declassify the legal opinions so citizens can see the rules under which the government is operating.
According to New York Times reporter Charlie Savage, the senators “said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.”
“Americans know their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law,” Udall and Wyden contend.
The letter also expressed discontent over the Obama administration’s failure to establish a “regular process for reviewing, redacting and releasing significant opinions” issued by FISA under the Patriot Act. This complaint alluded to Freedom of Information Act petitions filed by the American Civil Liberties Union and The New York Times seeking copies of the FISA decisions.
Although the Obama administration announced in August 2009 that it was starting a process to declassify redacted court opinions, the letter states, “two and a half years later ... this ‘process’ has produced literally zero results. Not a single redacted opinion has been released.”
Udall and Wyden question how much detail of covert actions could be learned from the FISA court opinions.
Legislation ensuring access to information promotes democracy, while excess secrecy stifles it. As summarized in the Udall/Wyden letter, “Government in a democracy must act within publicly understood law so that voters ‘can ratify or reject decisions made on their behalf’ — even if that “obligation to be transparent with the public” creates other challenges.”