FISA Court & Transparency: Never the Twain Shall Meet

The Foreign Intelligence Surveillance Court (FISC) yesterday refused to make public documents related to the Bush Administration's warrantless wiretapping program.
In August the American Civil Liberties Union (ACLU) sought the release of records related to "the scope of the government's authority to engage in the secret wiretapping of Americans," following the passage of the Protect America Act.
According to the ACLU's website, in an effort to secure passage of the act, "the president and members of Congress publicly made repeated veiled references to orders issued by the FISC earlier this year" as justification for the legislation.
At the time of the act's passage in August,
Ryan Singel of Wired.com, wrote that the act for the first time "removes the prohibition on warrantless spying on Americans abroad and gives the government wide powers to order communication service providers such as cell phone companies and ISPs to make their networks available to government eavesdroppers."
The act employs vague, easily manipulated language: it refers to "the acquisition of foreign intelligence information" even though this could allow the monitoring of American citizens abroad; it seeks to monitor people only "reasonably believed" to be outside the US, and permits the FISC to dismiss only "clearly erroneous" justifications provided by the Justice Department in its pursuit of intelligence targets. As the Washington Post phrased it at the time, the act "has been criticized as being too broad and lacking effective court oversight."

Among the many changes to FISA there are two of significance embodied in the Protect America Act: it allows spy agencies such as the National Security Agency (NSA) to compel US-based ISPs and cell phone companies to open their networks to American intelligence (although they can challenge an order in FISC--but the entire process is secret); it also excludes oversight by the Inspector General who, as Singel notes, "uncovered abuses of the Patriot Act by the FBI after being ordered by Congress to audit the use of powerful self-issued subpoenas"; instead, oversight is to be monitored by the Attorney General who, of course, works for the administration.
The act also prohibits legal challenges such as the ones currently being litigated that have spurred calls for retroactive telecom immunity: "notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.

The Director of the ACLU National Security Project, Jameel Jaffer, responded to the FISC decision by saying it was disappointing "both in its reasoning and its result. A federal court's interpretation of federal law should not be kept secret from the American public. The Bush administration is seeking expanded surveillance powers from Congress because of the rulings issued by the Foreign Intelligence Surveillance Court earlier this year. Under this decision, those rulings may remain secret forever."

Sen. Sheldon Whitehouse (D-RI) spoke on the Senate floor on Friday and said:

"We will shortly consider making right the things that are wrong with the so-called Protect America Act, a second-rate piece of legislation passed in a stampede in August at the behest of the Bush Administration. It is worth for a moment considering why making this right is so important.
President Bush pressed this legislation not only to establish how our government can spy on foreign agents, but how his administration can spy on Americans. Make no mistake, the legislation we passed in August is significantly about spying on Americans – a business this administration should not be allowed to get into except under the closest supervision. We have a plain and tested device for keeping tabs on the government when it’s keeping tabs on Americans. It is our Constitution."

The challenge that lies before us is to determine whether our Constitution is still our Constitution.