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<div class="">July 8, 2013</div>
<h1>The Laws You Can’t See</h1>
<h6 class="">By
<span>
<a href="http://www.nytimes.com/interactive/opinion/editorialboard.html" rel="author" title="More Articles by THE EDITORIAL BOARD"><span>THE EDITORIAL BOARD</span></a></span></h6>
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<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[ItmItm]" title="Link to 1st paragraph">¶</a></span>
In the month since <a title="A Times article from June" href="http://www.nytimes.com/2013/06/10/us/former-cia-worker-says-he-leaked-surveillance-data.html">a national security contractor leaked classified documents</a>
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[UncUnc]" title="Link to 2nd paragraph">¶</a></span>
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.
</p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[BtiBti]" title="Link to 3rd paragraph">¶</a></span>
But this is a debate in which almost none of us know what we’re talking about. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[AELIrs]" title="Link to 4th paragraph">¶</a></span>
As <a title="Times Article" href="http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?ref=foreignintelligencesurveillanceactfisa">Eric Lichtblau reported in The Times on Sunday</a>,
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[BtcEat]" title="Link to 5th paragraph">¶</a></span>
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[TfpTfp]" title="Link to 6th paragraph">¶</a></span>
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[AoaIip]" title="Link to 7th paragraph">¶</a></span>
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.
</p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[WjsTia]" title="Link to 8th paragraph">¶</a></span>
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[EbtIid]" title="Link to 9th paragraph">¶</a></span>
Even before the latest revelations of government snooping, some members of Congress were trying to provide that check. <a href="http://www.nytimes.com/interactive/2013/06/08/opinion/08editorial-doc.html?ref=opinion">In a letter to the court in February</a>,
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. </p>
<p><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[SJMIlo]" title="Link to 10th paragraph">¶</a></span>
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. </p>
<p class=""><span><span class=""><a class="" href="http://www.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html?nl=todaysheadlines&emc=edit_th_20130709&pagewanted=print#p[WdkAtt]" title="Link to 11th paragraph">¶</a></span>
We don’t know what we’ll find.</span> <span>The surveillance court may be strictly adhering to the limits of the Fourth Amendment as interpreted by the Supreme Court.</span> <span>Or not.</span> <span>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</span>.</p></div><br><div><br>-- <br>Art Deco (Wayne A. Fox)<br><a href="mailto:art.deco.studios@gmail.com" target="_blank">art.deco.studios@gmail.com</a><br><br><img src="http://users.moscow.com/waf/WP%20Fox%2001.jpg"><br>
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