WASHINGTON -- Towards the end of his hearing Wednesday on cyber threats and the intelligence community’s surveillance efforts, Gen. Keith Alexander, the head of the National Security Agency, was asked if he’d support making public the legal decisions justifying some of those surveillance programs.
“Do you support the standards of law, the interpretations of the FISA [Foreign Intelligence Surveillance] Court -- of the plain language -- to be set before the American people, so we can have this debate?” Sen. Jeff Merkley (D-Ore.) wanted to know.
For Merkley and other lawmakers who have raised concerns about the NSA’s data-mining operations, the FISA Court opinions are not some shiny political object. They’re a linchpin for understanding the scope of the surveillance regime currently in place. Having been kept secret from the public -- on grounds that disclosure could have national security ramifications -- the opinions would reveal how the government views its legal authorities under the Patriot Act.
And so, when Alexander answered his question in the affirmative, Merkley was pleasantly surprised.
“I think that makes sense,” said the NSA leader. “I’m not the only decision-maker in the administration on this process ... I don’t want to jeopardize the security of Americans by making the mistake and saying, yes we are going to do all that. But the intent is to get the transparency there.”
For several years now, Merkley has been readying for this moment. The Oregon Democrat said he’s had grave concerns about the NSA’s phone surveillance program but felt restricted in what he could do to register his complaints. So he and others have pressed for the FISA Court opinions, hoping to reveal how the administration argues that specific or future investigations that deal with a finite amount of phone call data allow them to collect massive swaths of data on millions of individuals.
“The administration keeps saying: ‘Well, Congress authorized this. Well, what Congress authorized is all of the standards [for phone surveillance],” Merkley said in an interview. You have to do an application, you have to specify the tangible thing you want, you have to show that there are reasonable grounds and that those things are relevant to an authorized investigation.”
“Somehow the standards in the law have been interpreted and they've been interpreted in ways that change the standards into apparently something that is unrecognizable, which is anything, anytime, anyplace, or all records, all times, all places. And what gives us that translation are the FISA court opinions.”
Last week brought the first breakthrough, when The Guardian reported that the FISA court had granted an order giving the government authority to collect data from million of US Verizon customers for a three-month period.
Days later, Merkley and Sen. Mike Lee (R-Utah) introduced legislation to require the attorney general to declassify other significant FISA Court opinions. They’ve been joined by Sens. Patrick Leahy (D-Vt.), Dean Heller (R-Nev.), Mark Begich (D-Ark.), Al Franken (D-Minn.), Jon Tester (D-Mont.), Ron Wyden (D-Ore.), Richard Blumenthal (D-Conn.), Rand Paul (R-Ky.) and Max Baucus (D-Mont.).
Administration officials so far have resisted calls to make the FISA opinions public. They have said that they do have the legal authority to collect phone records (dates, times, and locations of calls) but must get additional legal clearance in order to further explore the records they collect (the names of individuals, wiretaps, etc...). On Wednesday, Alexander said the surveillance tool has helped disrupt dozens of terrorist attacks. Other officials have described the capability as critical.
"If you're looking for a needle in the haystack, you need a haystack," said Jeremy Bash, former CIA Director Leon Panetta's chief of staff.
The debate over the FISA Court opinions, however, may be getting beyond the administration's control. In a defeat to the Department of Justice, the FISA Court ruled on Wednesday that its opinions and orders did not have to be kept confidential from the public. The ruling didn’t compel the executive branch to release any information. But it opened the door to lawsuits from groups seeking them.
Combined with Alexander’s comments at the Senate Appropriations Committee hearing earlier in the day, Merkley allowed himself to feel a bit of optimism.
“I kind of see this as a multistep process, where when we understand what the rules of the road are, and that's in the FISA's opinions about interpreting what the plain language of the law is … we will have a debate,” said Merkley. “And in that debate, folks in the judiciary committee, in the intelligence committee, will say, ‘Now that we understand how the rules of the road are written, this is adequate, this is not adequate.’ And plus, it may result in the possibility to test these applications against these fourth amendment, in ways that weren't possible when we didn't know your information was being sought.”