Gary Cameron/ReutersA Code Pink protester on July 9, 2013.
After Edward Snowden leaked documents revealing secret government data-mining programs, President Obama said he would “welcome” a debate on surveillance.
Mr. Obama hasn’t been heard from since on that topic, but fortunately for Americans who are concerned about the balance between civil liberties and national security, other people have.
Members of Congress, for example, have pressed the Foreign Intelligence Surveillance Court to release declassified versions of its secret ruling. The court has pretty much dismissed those requests outright, using the circular argument that the decisions can’t be declassified because they contain classified information.
Still, the drumbeat for transparency and reform continues. At his confirmation hearing today, Mr. Obama’s nominee for director of the Federal Bureau of Investigation, James Comey, at least seemed open to the possibility of declassifying summaries of FISA court decisions.
“But because I don’t know what’s in the opinions, also I don’t know what’s on the other side in terms of concerns about classified information, it’s hard for me to say at this point,” Mr. Comey said. “I think it is a worthy exercise to look closely at it, though.”
Also today, James Robertson, a FISA judge from 2002 to 2005, criticized the court.
Only the government presents a case at FISA hearings — because the information divulged is too secret for outside lawyers. But “anyone who has been a judge will tell you a judge needs to hear both sides of a case,” he said.
Judge Robertson told The Associated Press that he resigned from the FISA court to protest President George W. Bush’s warrantless wiretapping operation. (Judge Robertson, by the way, was the judge who ruled against Mr. Bush in Hamdan v. Rumsfeld, the case that granted inmates at the Guantanamo Bay prison camp the right to challenge their detentions.)
He did say he was impressed by “the careful, scrupulous and fastidious work by the Justice Department” in obtaining secret surveillance warrants and that the FISA judges pushed back when they thought warrants were not well argued.
But when Congress approved changes to the FISA system in 2008, it expanded the court’s role. Since then, the government has asked FISA judges to approve entire surveillance programs, not just individual warrants.
As Judge Robertson argued, that is not a judicial function.