The Project for Privacy and Surveillance Accountability, joined by seven other civil liberties organizations across the ideological spectrum, today urged the leaders of three Senate committees to require the making public of many years’ worth of classified decisions, opinions and orders issued by two secret surveillance courts.
“The withheld opinions in question set the scope and powers of programs that were used to conduct warrantless, bulk surveillance of millions of Americans before June, 2015,” said Bob Goodlatte, PPSA senior policy advisor. “To deny a free society the right to know judicial opinions is troubling. To deny Americans the right to know the governing rules set by courts for domestic surveillance is to step outside the Constitution and the American legal system altogether.”
The letter, jointly signed by a coalition that includes the American Civil Liberties Union, Americans for Prosperity, the Brennan Center for Justice, Demand Progress, Due Process Institute, Free Press Action and FreedomWorks, urged Senate leaders to attach an amendment offered by Sen. Patrick Leahy (D-VT) and Sen. Mike Lee (R-UT) to the National Defense Authorization Act (NDAA) of 2022.
With strong, bipartisan support for passage of the USA Freedom Act in June, 2015, Congress required the declassification of significant decisions made by the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR). The executive branch, however, interpreted the statute in a way that allowed it to decline to release FISC and FISCR decisions that were made before the passage of that act.
The proposed NDAA amendment would grant the Director of National Intelligence one year to complete a declassification review of earlier FISC and FISCR decisions, with the power to withhold any information that would harm national security. Such safeguards, in place for decisions made after the passage of the USA Freedom Act, allowed disclosures of decisions after June, 2015, without any evidence of compromise to national security.
“These older decisions are even less likely to contain currently sensitive information,” Goodlatte said. “With the attachment of this amendment to the NDAA, Congress can complete what it began in 2015, shedding light on a body of secret law that few know about, but all live under.”
The coalition’s open letter is addressed to the chairs and ranking members of the Senate Armed Services, Intelligence and Judiciary committees, as well as to the leadership of the Senate and House.
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