[Vision2020] The Laws You Can’t See

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

------------------------------
July 8, 2013
The Laws You Can’t See By THE EDITORIAL
BOARD<http://www.nytimes.com/interactive/opinion/editorialboard.html>

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[ItmItm]>In
the month since a
national security contractor leaked classified
documents<http://www.nytimes.com/2013/06/10/us/former-cia-worker-says-he-leaked-surveillance-data.html>revealing
a vast sweep of Americans’ phone records by the federal
government, people across the country have disagreed about the extent to
which our expectation of personal privacy must yield to the demands of
national security.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[UncUnc]>Under
normal circumstances, this could be a healthy, informed debate on a
matter of overwhelming importance — the debate President Obama said he
welcomed in the days after the revelations of the surveillance programs.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[BtiBti]>But
this is a debate in which almost none of us know what we’re talking
about.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[AELIrs]>As
Eric
Lichtblau reported in The Times on
Sunday<http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?ref=foreignintelligencesurveillanceactfisa>,
the Foreign Intelligence Surveillance Court has for years been developing
what is effectively a secret and unchallenged body of law on core Fourth
Amendment issues, producing lengthy classified rulings based on the
arguments of the federal government — the only party allowed in the
courtroom. In recent years, the court, originally established by Congress
to approve wiretap orders, has extended its reach to consider requests
related to nuclear proliferation, espionage and cyberattacks. Its rulings,
some of which approach 100 pages, have established the court as a final
arbiter in these matters.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[BtcEat]>But
the court is as opaque as it is powerful. Every attempt to understand
the court’s rulings devolves into a fog of hypothesis and speculation.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[TfpTfp]>The
few public officials with knowledge of the surveillance court’s work
either censor themselves as required by law, as Senator Ron Wyden has done
in his valiant efforts to draw attention to the full scope of these
programs, or they offer murky, even misleading statements, as the director
of national intelligence, James Clapper Jr., did before a Senate
Intelligence Committee hearing in March.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[AoaIip]>As
outrageous as the blanket secrecy of the surveillance court is, we are
equally troubled by the complete absence of any adversarial process, the
heart of our legal system. The government in 2012 made 1,789 requests to
conduct electronic surveillance; the court approved 1,788 (the government
withdrew the other). It is possible that not a single one of these 1,788
requests violated established law, but the public will never know because
no one was allowed to make a counterargument.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[WjsTia]>When
judicial secrecy is coupled with a one-sided presentation of the
issues, the result is a court whose reach is expanding far beyond its
original mandate and without any substantive check. This is a perversion of
the American justice system, and it is not necessary.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[EbtIid]>Even
before the latest revelations of government snooping, some members of
Congress were trying to provide that check. In a letter to the court in
February<http://www.nytimes.com/interactive/2013/06/08/opinion/08editorial-doc.html?ref=opinion>,
Senator Dianne Feinstein and three others asked that any rulings with a
“significant interpretation of the law” be declassified. In response, the
court’s presiding judge, Reggie Walton, wrote that the court could provide
only summaries of its rulings, because the full opinions contained
classified information. But he balked at releasing summaries, which he
feared would create “misunderstanding or confusion.” It is difficult to
imagine how releasing information would make the confusion worse.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[SJMIlo]>Senator
Jeff Merkley, Democrat of Oregon, recently reintroduced a bill that
would require declassification. It was defeated in December. In light of
the national uproar over the most recent revelations, the leadership in
Congress should push to pass it and begin to shine some light on this dark
corner of the judicial system.

¶<http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[WdkAtt]>We
don’t know what we’ll find. The
surveillance court may be strictly adhering to the limits of the Fourth
Amendment as interpreted by the Supreme Court. Or not. And that’s the
problem: This court has morphed into an odd hybrid that seems to exist
outside the justice system, even as its power grows in ways that we can’t
see.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/vision2020/attachments/20130709/876b7bb3/attachment.html>