Today, Rep. Adam Schiff (D-CA) and Rep. Todd Rokita (R-IN) introduced legislation which would shed light on the law governing NSA surveillance programs recently revealed in press reports. This bipartisan bill would require the Attorney General to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions, allowing Americans to know how the Court has interpreted the legal authorities created under Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act.
"In order to have an informed public debate on the merits of these programs, it is important for the American people to know how such programs have been authorized, their limits and their scope," said Rep. Schiff. "Particularly now that the existence of these programs has been acknowledged, I believe there is much more that can be shared with the public about their legal basis. It is my hope that this legislation will increase transparency and inform the national debate about the surveillance authorities provided to the Intelligence Community. I also believe that requiring additional disclosure would provide another valuable check on any potential expansion of surveillance under these authorities, whether by this or any future Administration."
"This legislation affirms that Americans have a right to know the assumptions and legal interpretations that are guiding our national security decisions. Just as importantly, it provides that information to the public in a way that does not compromise specific security techniques. Our bill will help Congress and the American people exercise proper oversight, while still enabling us to do everything possible within the bounds of the Constitution to protect ourselves from those who would harm us," said Rep. Rokita.
The Foreign Intelligence Surveillance Court (FISC) is a special U.S. federal court created by the Foreign Intelligence Surveillance Act (FISA) of 1978. The FISC is tasked with reviewing and authorizing requests for surveillance authorities for national security purposes, both inside and outside the United States. Because of the sensitive nature of these requests, the FISC is a "secret court" and FISC rulings, orders, and other deliberations are highly classified. As with any court, the FISC's rulings may include substantive interpretations of the law and Congressional intent, and such interpretations determine the extent of the government's surveillance authority. Much of the Court's orders and rulings are necessarily classified, as they relate to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations and constructions made by the FISC can, in many cases, be made public in a format consistent with national security.
This legislation includes provisions to address national security concerns. If the Attorney General determines that a Court opinion cannot be declassified without undermining national security interests or the sources and methods of intelligence gathering, the Attorney General can declassify a summary of the opinion. If the Attorney General determines that even a summary of an opinion would undermine national security, the Attorney General is required to provide a report to the House and Senate Intelligence Committees describing the process to be implemented to declassify FISA Court opinions including an estimate of the number of opinions that will be declassified and the number that are expected to be withheld because of national security concerns.