Ending Secret Law Act (S.1130)

http://www.govtrack.us/congress/bills/113/hr2475/text

by mikegerwitz • 13 years ago

4 3 13 years ago

pwg• 13 years ago

To require the Attorney General to disclose each decision ... of a Foreign Intelligence Surveillance Court ... __unless such disclosure is not in the national security interest of the United States and for other purposes__.

So, the AG simply decides that all such disclosures are "not in the national security interest" and everything stays secret anyway, irrespective of this bill should it become law. This smells of "pretend to do something, without actually doing anything."

mikegerwitz2• 13 years ago

My concern exactly; I prepared a response regarding this, which I just posted here, although I'm skeptical of a timely response.

mikegerwitz2• 13 years ago

This was brought to my attention by Senator Chuck Schumer in a reply to an e-mail sent months back with regards to the NSA revalations. Here is my reply:

Senator,

Thank you for your reply; I appreciate your concern for these issues. If you could find the time, I would love a reply to the below that I could forward on to others.

On Wed, Aug 07, 2013 at 02:14:55PM -0400, Senator Schumer wrote:

First, there should be an open discussion and debate about them in
Congress. Policies this profound should not be decided unilaterally by any
administration. Second, there should be clear rules established that the
government has to obey. Third, there ought to be an independent arbiter,
like a judge, that makes sure these rules are being obeyed.
Once the arbiter makes rulings on these issues, they should be released to
the public for review---so long as their release would not jeopardize our
national security.

This is certainly a step in the right direction. However:

    ``It is the sense of Congress that each decision, order, or opinion issued
    by the Foreign Intelligence Surveillance Court or the Foreign
    Intelligence Surveillance Court of Review that includes significant
    construction or interpretation of section 501 or section 702 of the 
    Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 and 1881a)
    should be declassified in a manner consistent with the protection of
    national security, intelligence sources and methods, and other properly
    classified and sensitive information.''

What oversight will ensure that the interpretation of ``a manner consistent with the protection of national security [...]'' is not too broad? This law is entirely at the mercy of this statement; the NSA and other agencies will likely try to argue quite hard that most all such information is in the interest of national security and, thusly, cannot be declassified.

As an example, consider the case Jewel v. NSA, filed by the EFF.[1] The case was for a while stalled while the NSA tried to argue the state secrets privilege, which was not denied until after Snowden's revelations.[2] While Judge White's decision is certainly reassuring, such friction needs to be limited to avoid a dysfunctional and terribly slow legal process.

That is not to say that this bill is not a step in the right direction with regards to exposing the FISA Court's decisions; however, this leads to another question: Why did it take this long?

The EFF and others have been pushing for the FISC to publish its secret interpretations of FISA and the Patriot Act for quite some time. Furthermore, there has been extensive evidence suggesting NSA spying[3] as outlined in the Hepting v. AT&T and Jewel v. NSA cases; two such examples are [4] and [5], with the latter (Summary of Voluminous Evidence) particularity damning.

Why did it take a whistleblower for our government to become interested in this investigations to the degree that they are today? Why is it necessary for a citizen to keep his government in check by his own means?

Regardless, thank you again for your response. I look forward to further discussion from lawmakers and, as a constituent, yourself.

[1] https://www.eff.org/cases/jewel

[2] https://www.eff.org/press/releases/federal-judge-allows-effs...

[3] http://www.mikegerwitz.com/2013/06/National-Uproar-A-Compreh...

[4] https://www.eff.org/file/28823

[5] https://www.eff.org/node/72021

Ending Secret Law Act (S.1130)

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